Petition — Robb v. Kennedy
Supreme Court brief1977
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| MICHAEL RODAK, JR.,
In the Supreme Court of the Unite State |
OCTOBER TERM, 1976
No... Z§- 1183
HAROLD P. ROBB, M.D., Individually and by His Succes-
sor in Office, C. DUANE HENSLEY, Ph.D., Director of the
Department of Mental Health, and PATRICK J. GANNON,
M.D., Individually and by His Successor in Office,
SADASHIV D. PARWATIKAR, M.D., Superintendent,
St. Louis State Hospital,
Petitioners,
Vs.
RICHARD KENNEDY,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
JOHN ASHCROFT
Attorney General
DANIEL P. Carp II
Assistant Attorney General
J. Paut ALLRED, JR.
Assistant Attorney General
Supreme Court Building
Jefferson City, Missouri 65101
(314) 751-3321
Attorneys for Petitioners
E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
INDEX
NET ENE SUE RR Ee
TEESE. RSD are naa OCR Ie eee
Questions Presented _ .
Constitutional Provisions, Statutes and Administrative
Regulations Involved—
Constitution of the United States
United States Code -
Missouri Revised Statutes .
Rules and Regulations, Personnel prin Send,
I Cite SIE csinesnicssisat sipseaeecennaiisnenntannasoedincaiien
EST SRE Aa aL, SR eT
Reasons for Granting Writ—
The Decision Below Conflicts With Controlling
Opinions of This Court and Interferes With a State’s
Right Under the Tenth Amendment to Govern Its
Own Employer-Employee Relationships _ .
A. The Decision Conflicts With the Holding of
This Court in Arnett v. Kennedy, 416 U.S. 134
(1974) and Board of Regents v. Roth, 408 U.S.
564 (1972) 3 pe
B. The Decision Below Failed to Follow the
Teachings of This Court in Bishop v. Wood,
U.S. __., 48 L.Ed.2d 684, 44 U.S.L.W.
4820 (June 10, 1976), and National League of
Cities v. Usery, . wan , 49 L.Ed.2d 245
(June 24, 1976) a ee
0 OLE ETL CTT LA te
>
15
19
20
23
27
II
Appendix—
Judgment and Opinion of the United States Court
of Appeals for the Eighth Circuit I
Order Denying Respondent’s Petition for Rehear-
Order Denying Petitioners’ Petition for Rehear-
ee _. Al6
Judgment and Orders of the United States District
Court for the Eastern District of Missouri . A17-A21
Letter of Dismissal RL
Table of Citations
CASES
Arnett v. Kennedy, 416 U.S. 134 (1974) ...... 20, 21, 22, 25, 27
Bishop v. Wood, ........ | , 48 L.Ed.2d 684, 44 U.S.
L.W. 48620 (June 10, 1976) ................................ 22, 23, 25, 27
Board of Regents v. Roth, 408 U.S. 564 (1972) ...... 20, 21, 24
Cafeteria Workers v. McElioy, 367 U.S. 886 (1961) ...... 22
Fahey v. Mallonee, 332 U.S. 245 (1947) 00.0.2... eeeeeeeeees 21
Goss v. Lopez, 419 U.S. 565 (1975) ................:.esessseeseeeseeees 25
National League of Cities v. Usery, ........ | , 49
Re GD I IED a csscctnenensileincnisesiianinsuti 23, 24
Paul v. Davis, 424 U.S. 693 (March 23, 1976) ................ 25
Quinn v. Muscare, 425 U.S. 560 (May 3, 1976) ............ 19
Tennessee v. Dunlop, ........ EE: divesete , 48 L.Ed.2d 660, 44
cP AR ee 20
Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), cert.
EE, WOE acsctecintonienasenninccianinamsenssanintnineasnamanean 22
Wilderman v. Nelson, 467 F.2d 1173 (8th Cir. 1972) .... 24
Wolf v. Missouri State Training School for Boys, 517
WBE GRR CBR. Tr LTE) anna nsnnsnsceesnsecsssccsseeses 17
lit
STATUTES
Mo. Rev. Stat. Chapter 36, §$150, 370, 380, 390 ...... 5, 6, 7, 8,
16, 22, 26
Mo. Rev. Stat. $§536.100-536.140 00 17
Mo. Supreme Court Rule 100 2000000 17
Mo. Constitution, Article V, §22 00 17
TS DiC. SRUGCD, BOG nnn ccccscceccccseceseceseeeessss-......... 4,17
U.S. Constitution, Amendments V, X, XIV ............ 4, 24
In the Supreme Court of the United States
OCTOBER TERM, 1976
HAROLD P. ROBB, M.D., Individually and by His Succes-
sor in Office, C. DUANE HENSLEY, Ph.D., Director of the
Department of Mental Health, and PATRICK J. GANNON,
M.D., Individually and by His Successor in Office,
SADASHIV D. PARWATIKAR, M.D., Superintendent,
St. Louis State Hospital,
Petitioners,
vs.
RICHARD KENNEDY,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Petitioners, Harold P. Robb, M.D., individually and
by his successor in office, C. Duane Hensley, Ph.D., Director
of the Department of Mental Health, and Patrick J. Gan-
non, M.D., individually and by his successor in office,
Sadashiv D. Parwatikar, M.D., Superintendent, St. Louis
State Hospital. respectfully pray that a writ of certiorari
issue to review the judgment and opinion of the United
States Court of Appeals for the Eighth Circuit entered
in this proceeding on December 30, 1976.
OPINIONS BELOW
The opinion of the Court of Appeals, not yet reported,
appears in the appendix hereto, pp. Al-Al4. The judg-
ments and opinions of the United States District Court
for the Eastern District of Missouri, which are unreported,
appear in the appendix, pp. Al7-A21.
JURISDICTION
The judgment of the Court of Appeals for the Eighth
Circuit was entered on December 30, 1976. Respondent
filed a timely petition for rehearing, with suggestions that
the rehearing be heard en banc. This petition was denied
on January 21, 1977. Petitioners filed a timely petition
for rehearing, with suggestions that the petition be reheard
en banc or in the alternative that the questions presented
be certified to the United States Supreme Court. This
petition was denied on January 24, 1977. On February
2, 1977, the Court of Appeals denied petitioners’ application
for stay of the mandate pending the filing of this petition.
The mandate issued to the District Court on February
2, 1977. The Honorable Justice Blackmun denied peti-
tioners’ application for stay presented to him on February
10, 1977.
This petition for certiorari was filed within ninety
days of the date that the Court of Appeals denied peti-
tioners’ petition for rehearing. This Court’s jurisdiction
is invoked under 28 U.S.C. §1254(1), §2101(c) and under
Supreme Court Rule 19.
Ne eames
ere Comme ee
QUESTIONS PRESENTED
1. May a state or other public governmental em-
ployer, at the same time it confers upon an employee
an expectation that suspension or dismissal from employ-
ment will only be for cause, prescribe the procedural means
by which an employee may be suspended or dismissed
and the procedural means by which it may be determined
whether the suspension or dismissal was proper?
2. May a state or other public governmental employer
adopt a system which is similar to common practice in
private industry, namely the right of the employer to
suspend or to dismiss an employee at any time subject
to the employee’s right of reinstatement and an award
of full back pay if it is subsequently determined that
the suspension or dismissal was unjustified?
3. Or, is a state required under the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution to not only provide an employee a full and
fair post-termination evidentiary hearing before an impar-
tial tribunal, but also provide and follow certain pre-termi-
nation procedures in addition to a post-termination hear-
ing—namely, advance notice, an opportunity to rebut the
charges in writing, and an opportunity for oral conference
with the decision maker?
CONSTITUTIONAL PROVISIONS, STATUTES AND
ADMINISTRATIVE REGULATIONS INVOLVED
Constitution of United States
Amendment V:
“(Njor shall any person ... be deprived of life,
liberty or property, without due process of law; .. .”
Amendment X:
“The powers not delegated to the United States
by the constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the
people.”
Amendment XIV:
“No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States, nor shall any state deprive any
person of life, liberty or property without due process
of law, nor deny to any person within its jurisdiction
the equal protection of the laws.”
United States Code
Title 42, §1983:
“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceed-
ing for redress.”
s)
Missouri Revised Statutes
Chapter 36, $150, subsection 1: (Revised Statutes of Mis-
souri, Cumulative Supplement 1975, p. 78)
“Every appointment or promotion to a position
covered by this law shall be made on the basis of
merit determined by such person’s eligibility rating
established by competive examinations. Demotions in
and dismissals from employment shall be made for
cause under rules and regulations uniformly applicable
to all positions of employment. No appointment, pro-
motion, demotion or dismissal shall be made because
of favoritism, prejudice or discrimination. The regula-
tions shall prohibit discrimination in other phases of
employment and personnel administration, and shall
provide such remedy as is required by federal merit
system standards for grant-in-aid programs and is not
provided in Chapter 296, RSMo.”
Chapter 36, $370, subsection 1: (Revised Statutes of Mis-
souri, Cumulative Supplement 1975, p. 80)
“An appointing authority may, for disciplinary
purposes, suspend without pay any employee in his
division for such length cf time as he considers appro-
priate, not exceeding twenty calendar days in any
twelve-month period. In case of a suspension, the
director shall be furnished with a statement in writing
specifically setting forth the reasons for such suspen-
sion. Upon request, a copy of such statement shall
be furnished to such employee. With the approval
of the director, any employee may be suspended for
a longer period pending the investigation or trial of
any charges against him. Any regular employee who
is suspended for more than three days shall have
6
the right to appeal to the board as provided under
section 36.390.”
Chapter 36, $380: (Revised Statutes of Missouri, Cumula-
tive Supplement 1975, p. 80)
“An appointing authority may dismiss for cause
any employee in his division occupying a position sub-
ject hereto when he considers that such action is re-
quired in the interests of efficient administration and
that the good of the service will be served thereby.
No dismissal of a regular employee shall take effect
unless, prior to the effective date thereof, the appoint-
ing authority gives to such employee a written state-
ment setting forth the reason therefor and files a
copy of such statement with the director. If the direc-
tor determines that the statement of reasons for the
dismissal given by the appointing authority shows that
such dismissal does not reflect discredit on the character
or conduct of the employee, he may, upon request
of the employee, approve reemployment under subsec-
tion 7 of section 36.240, in any class in which the em-
ployee has held regular status. Any regular employee
who is dismissed shall have the right to appeal to the
board as provided under section 36.390.”
Chapter 36, §390, subsection 5: (Revised Statutes of Mis-
souri, Cumulative Supplement 1975, p. 81)
“Any regular employee who is dismissed or de-
moted or suspended for more than three days may
appeal in writing to the board within thirty days after
the effective date thereof, setting forth in substance
his reasons for claiming that the dismissal, suspension
or demotion was for political, religious, or racial rea-
sons, or not for the good of the service. Upon such
appeal, both the appealing employee and the appoint-
|
ing authority whose action is reviewed shall have the
right to be heard and to present evidence at a hearing
which, at the request of the appealing employee, shall
be public. At the hearing of such appeals, technical
rules of evidence shall not apply. After the hearing
and consideration of the evidence for and against a
suspension or demotion the board shall approve or
disapprove such action, and in the event of a disap-
proval the board shall order the reinstatement of the
employee to his former position and the payment to
the employee of such salary as he has lost by reason
of such suspension or demotion. After the hearing
and consideration of the evidence for and against a
dismissal the board shall approve or disapprove such
action and may make any one of the following appro-
priate orders:
(1) Order the reinstatement of the employee to
his former position and the payment to the employee
of part or all of such salary as has been lost by
reason of such dismissal;
(2) Sustain the dismissal of such employee, un-
less the board finds that the dismissal was based upon
political, social, or religious reason, in which case
it shall order the reinstatement of the employee to
his former position and the payment to the employee
of such salary as has been lost by reason of such
dismissal;
(3) Except as provided above the board may
sustain the dismissal, but may order the director to
recognize reemployment rights for the dismissed em-
ployees under subsection 7 of section 36.240, in an
appropriate class or classes, or may take steps to effect
the transfer of such employee to an appropriate position
in the same or another division of service.”
a
Chapter 36, $390, subsection 6: (Revised Statutes of Mis-
souri, Cumulative Supplement 1975, p. 81)
“The board shall establish such rules as may be
necessary to give effect to the provisions of this sec-
tion. The rules may provide that the board or the
chairman of the board may delegate responsibility for
the conduct of investigations and the hearing of ap-
peals provided under any section of this law to a
member of the board or to a hearing officer designated
by the board. Such hearing officer shall have the
power to administer oaths, subpoena witnesses, compel
the production of records pertinent to any hearing,
and take any action in connection with such hearing
which the board itself is authorized to take by law
other than making the final decision and appropriate
order. When the hearing has been completed, the
individual board member or the hearing officer who
conducted the hearing shall prepare a summary there-
of and recommend a findings of fact, conclusions of
law, decision and appropriate order for approval of
the board. The board may adopt such recommenda-
tions in whole or in part, require the production of
additional testimony, reassign the case for rehearing,
or may itself conduct such new or additional hearing
as is deemed necessary prior to rendering a final deci-
sion.”
Rules and Regulations, Personnel Advisory Board,
State of Missouri
Rule 13.2—CAUSES FOR SUSPENSION, DEMOTION
AND REMOVAL
“The following are declared to be causes for suspen-
sion, demotion, or removal of any employee in the
classified service; however, such actions may be based
upon causes other than those herein enumerated,
namely, that the employee:
(a) Has willfully violated any of the provisions of
the ‘State Merit System Law’ or the rules of the
Personnel Advisory Board made in pursuance
thereof;
(b
_—
Is incompetent or inefficient in the performance
of the duties of his position (specific instances
to be charged) ;
(c) Has been wantonly careless or negligent in the
care of the property of the State;
(d) Has been guilty of abusive or improper treat-
ment toward an inmate or patient of any state
institution or to a person in custody; provided
the acts committed were not necessarily or law-
fully committed in self-defense, to protect the lives
of others or to prevent the escape of anyone law-
fully in custody;
(e) Has some permanent or chronic physical or mental
ailment or defect which incapacitates him for the
proper performance of the duties of his position;
(f) Has been habitually tardy in reporting for duty
or has absented himself frequently from duty dur-
ing regular working hours;
(g) Has been convicted of a felony, or of a misde-
meanor involving moral turpitude;
(h) Has been guilty of a scandalous and disgraceful
conduct while on or off duty where such conduct
tends to bring the state service into public dis-
repute.”
10
Rule 14.3—GUIDE FOR CONDUCT OF HEARINGS OF
DISCIPLINARY APPEALS BEFORE THE
MISSOURI PERSONNEL ADVISORY BOARD
“(a) APPEALS PROCEDURE
(1)
(2)
(3)
The Personnel Director, upon receipt of a
written request from an employee for an
appeal, will mail to the Appellant a form
on which he should carefully state his con-
tentions. This form should be returned to
the Personnel Director as soon as possible,
but in any event within 30 days after the
effective date of the disciplinary action. A
copy of the disciplinary notice from the Ap-
pointing Authority will be furnished the Ap-
pellant and if the appeal is accepted, a copy
of the Appellant’s contentions set out in his
appeal will be furnished the Appointing Au-
thority.
The Appellant may represent himself and
handle his own case but shall have the right
to be represented by a duly licensed Attor-
ney. A party to an appeal cannot be repre-
sented by anyone other than a duly licensed
Attorney (Sec. 484.010, RSMo.) except that
the Appointing Authority may appear by an
employee in his agency. If either party in-
tends to employ and be represented by an At-
torney, he shall promptly notify the Person-
nel Director of the name and address of such
Attorney.
If either party to an appeal desires the issu-
ance of a Subpoena for any witness or rec-
ords at any hearing he must apply for it
(4)
(5)
11
in writing at least five (5) days before the
date of the hearing, giving the name and
address of the witness, together with a state-
ment of what he intends to prove by such
witness, or records. The Personnel Director
or Personnel Advisory Board issues the Sub-
poena by request, but the service of the Sub-
poena rests in the hands of the party request-
ing it. Service of the Subpoena is to be
effected in accordance with Chapter 491.110
to 491.130, RSMo.
Upon the acceptance of an appeal, the Ap-
pellant and Appointing Authority, or their
representatives, may meet with the Person-
nel Director, acting for the Personnel Ad-
visory Board, at a time and place set by
the Director for a pre-hearing conference to
determine the facts at issue. At the pre-
hearing conference both parties may stipu-
late on mutually agreed matters relevant to
the disciplinary action or the appeal may
be resolved by agreement of the parties. If,
during the pre-hearing conference, the case
is not resolved and the appeal goes forward
to a hearing before the Personnel Advisory
Board, the Board will confine the hearing
to the law and facts at issue as stipulated
by mutual agreement of the parties to the
appeal.
All motions or other pleadings by the parties
shall be submitted in writing with a copy
served or mailed to the opposing party. A
party to an appeal may amend his pleading
as a matter of course at any time before
12
a responsive pleading is filed and served,
or, if the pleading is one to which no respon-
sive pleading is required and the action has
not been set for hearing he may so
amend it at any time within 30 days after
it is filed. Otherwise, a party may amend
his pleading only by leave of the Personnel
Advisory Board or by written consent of
the adverse party; and leave shall be freely
given when justice so requires. A party shall
plead in response to an amended pleading
within the time remaining for response to
the original pleading or within 10 days after
service of the amended pleading, whichever
period may be the longer, unless the Person-
nel Advisory Board otherwise orders.
(b) HEARINGS PROCEDURE:
(1)
(2)
(3)
Hearings before the Personnel Advisory
Board will be held in the Office of the Per-
sonnel Division in Jefferson City, Missouri.
If no pre-hearing conference has been held,
the Personnel Advisory Board will make a
determination of what questions are at issue
based upon the notice of disciplinary action
and the Appellant’s contentions in his appeal
prior to the taking of testimony. The hear-
ing shall be confined to and come within
the scope of law and facts that the Board
has determined to be at issue. The Board
may exclude evidence which is purely cumu-
lative.
The Board requires attendance at the hearing
of the appeal of the person who imposed
(4)
(5)
(6)
(7)
(8)
(9)
13
the discipline. If that person is not the Ap-
pointing Authority it must be the subor-
dinate to whom authority has been delegated.
The Chairman of the Personnel Advisory
Board will read a statement citing the appro-
priate Sections of the Merit System Law ap-
plicable to appeals.
The Chairman of the Personnel Advisory
Board will read the charges of the Appoint-
ing Authority and the contentions of the Ap-
pellant. By agreement those documents may
be inserted in the record without reading
before commencing the taking of testimony.
All witnesses will stand and be sworn.
The Personnel Advisory Board, on request
of either party or on its own motion, may
order that the witnesses be separated so as
to preclude any witness, other than the par-
ties and their Attorneys, from hearing the
testimony of other witnesses. In the applica-
tion of this rule only one person, in addition
to Counsel, shall represent the Appointing
Authority.
The Appointing Authority will be required
to present his case first. Experience has
shown this method gives the Personnel Ad-
visory Board a clearer and quicker picture
of the issues. This is not a shift of the
burden of proof, but is only the burden of
going ahead with the proof.
The Personnel Advisory Board may take no-
tice of the Rules and Regulations, the class
(10)
(11)
(12)
(13)
(14)
14
specifications, and the Pay Plan without the ©
necessity of an offer in evidence.
The Personnel Advisory Board may fix the
total time to be allowed for oral argument.
At the request and expense of any party
or parties, the Personnel Division will cause
the proceedings to be recorded and pre-
served.
No rehearing shall be granted from a final
decision of the Personnel Advisory Board.
An appeal set for hearing may be continued:
(a) By the Personnel Advisory Board or
Personnel Director for cause deemed
sufficient;
(b) By consent of both parties to the appeal;
(c) If the hearing is not reached it shall
be reset and given precedence over any
subsequent appeal.
No continuance will be granted except for
compelling cause or to serve the ends of
justice. If an Appellant requests and is
granted a continuance, the Personnel Advi-
sory Board may, in its discretion, deny him
any compensation for that portion of time
lost by reason of the continuance made at
his request if his appeal is finally sustained.
The finding of the Board will be announced
in writing subsequent to the hearing. Each
party will be notified by letter sent to him
by Certified Mail. The finding will be made
as provided in Sec. 36.390(5), RSMo. 1959.
15
(15) As appropriate and where no specific rule
governs the issue, the Personnel Advisory
Board will utilize the rules of the Civil Pro-
cedure for guidelines.”
STATEMENT OF CASE
This case involves important policy questions as to
what procedures are required by the due process clause
of the Fourteenth Amendment before a state or other
public employer can suspend or dismiss any of its civil
service system employees. Also at issue is the more funda-
mental question of what extent the federal courts are
going to become involved in, review, and regulate the
personnel relationship of a state or other public employer
with its employees.
Richard Kennedy, respondent, at the time of his dis-
missal had been employed by the state at the St. Louis
State Hospital, a facility for the care and treatment of
the mentally ill, as the Workshop Director of the Work
Therapy Program. The terms of his employment were
governed by the provisions of Chapter 36, RSMo, the state
merit (civil service) system act. He was initially employed
by the state in December, 1968, as an industrial therapist
and received subsequent promotions until he obtained the
position of workshop director. He was subsequently sus-
pended on June 17, 1975, and dismissed from his position
effective June 24, 1975.
Under the provisions of Chapter 36, a merit (civil
service) system employee serves a six month probationary
period which can be extended for an additional six months.
During this probationary period, an employee can be dis-
missed et any time, without notice, and without cause.
16
Once an employee successfully completes his probationary
period, he becomes a “regular” employee subject to the
substantive and procedural protections as are provided
by Chapter 36, RSMo. A regular employee can be sus-
pended or dismissed only for cause under rules and regula-
tions adopted by the State Personnel Advisory Board uni-
formly applicable to all positions of employment (§§36.150,
36.370, and 36.380, RSMo Cum. Supp. 1975; and Rule 13.2
of the Rules and Regulations of the Personnel Advisory
Board). A regular employee who is suspended for more
than three days or who is dismissed has the right of
an appeal to the Personnel Advisory Board provided such
appeal is filed within thirty days. (See §36.390, RSMo
Cum. Supp. 1975; Rule 14.3.) The statute provides that
an employee who is dismissed is entitled to advance notice
of the reasons for such action prior to the effective date.
The Personnel Advisory Board is an administrative
agency composed of three individuals appointed by the
Governor, confirmed by the Senate, and not subject to
the control of any individual who has the authority to
suspend or dismiss an employee. The appealing employee
is entitled to an evidentiary hearing either before the
Board or a hearing officer, the right to be represented
by counsel, the right to call witnesses on his own behalf,
and the right to cross examine the witnesses who testify
against him (§36.390(5), RSMo Cum. Supp. 1975). Subse-
quently, the Board is required by Missouri law to issue
a decision with written findings of fact and conclusions
of law. If the Board determines that the dismissal or
suspension was not justified, it has the right to order
reinstatement including an award of full back pay for
the salary lost. Section 36.390(5), RSMo. In calculating
the award of back pay, the Board is required to set off
the wages or salaries which the employee earned in the
17
interim. But from this set off, the employee is entitled
to subtract his attorney’s fees and expenses. See Wolf
v. Missouri State Training School for Boys, 517 S.W.2d
138, 147-148 (Mo. Banc 1974). Finally, there is the right
of judicial review in the Missouri courts to review the
decision of the Board. See $$536.100-536.140, RSMo; Mis-
souri Supreme Court Rule 100; and Article V, §22, Mis-
souri Constitution.
The suspension and dismissal of Richard Kennedy from
his position of employment at St. Louis State Hospital
complied in toto with state merit (civil service) system
law. He was personally served prior to the effective date
of the dismissal a seven page letter specifying in detail
the reasons for such action (Appendix, pp. A22-A33).
In the same letter he was advised of his right to appeal
this action to the Personnel Advisory Board. He requested
and was immediately provided copies of the rules and
regulations of the Board which spell out the procedures
in order to perfect an appeal and the rules governing
the hearing (affidavit and exhibits of Patrick J. Gannon,
Superintendent).
Rather than pursuing his administrative remedies as
provided by Missouri law, respondent elected to and filed,
one day after the effective date of his dismissal, a complaint
in the United States District Court for the Eastern District
of Missouri alleging that the reasons for his dismissal were
false, and without basis in law or in fact. He further
contended that the dismissal violated his rights to pro-
cedural due process as guaranteed by the Fifth and Four-
teenth Amendments to the United States Constitution in
that he should have been granted a full pre-termination
evidentiary hearing or at the very minimum advance notice
and an opportunity to respond and to rebut the charges
in writing. Jurisdiction was based upon 42 U.S.C. §§1983,
1985, and 28 U.S.C. §$§1343, 1331, 1651, 2201 and 2202.
18
Named as defendants were Patrick J. Gannon, individually,
and in his official capacity as superintendent of St. Louis
State Hospital, and Harold P. Robb, M.D., individually
and in his official capacity as the Director of the Missouri
Department of Mental Health.
On February 12, 1976, the District Court, ruling on
cross motions for summary judgment, held that petitioners
did not violate respondent’s constitutional rights and that
the procedures employed in dismissing him accorded him
procedural due process. There was no adjudication as
to whether respondent’s dismissal was justified. However,
had respondent chosen to appeal to the Missouri Personnel
Advisory Board as provided by Missouri law, this issue
already would have been resolved. But he chose not to
do so until the time had expired.
Respondent timely appealed to the Eighth Circuit
Court of Appeals. The Court of Appeals reversed and
ordered reinstatement unless the state accords him certain
pre-termination risk of error minimizing procedures and
further accords him another opportunity to appeal to the
Personnel Advisory Board (Appendix p. Al4). Without
so expressly holding, the court below has implicitly held
the Missouri civil service system, Chapter 36, is unconstitu-
tional. The opinion holds that due process requires certain
pre-termination safeguards to minimize the risk of error
in addition to a full post-evidentiary hearing. These pre-
termination safeguards are: advance notice of the pro-
posed action, the statement of the charges and reasons,
a reasonable opportunity to submit written material in
rebuttal, and finally an opportunity for an oral appearance
before the decision maker, all prior to the effective date
of any suspension or dismissal. Basically, the Eighth Cir-
cuit is now imposing on the State of Missouri the pro-
cedures which were prescribed by Congress when it en-
acted the federal Civil Service System.
19
REASONS FOR GRANTING WRIT
The Decision Below Conflicts With Controlling
Opinions of This Court and Interferes With a State’s
Right Under the Tenth Amendment to Govern Its Own
Employer-Employee Relationships.
Far more is involved here than the narrow issue of
whether respondent’s dismissal was justified and whether
he should be reinstated to his position of employment.
Rather, the case involves important policy questions as
to what procedures must be followed by a state or other
public body before a civil service system employee can
be suspended or dismissed. Also involved is a more funda-
mental question as to what extent federal courts are going
to review personnel decisions by public bodies and interject
themselves into and regulate personnel relationships of
the state with its employees.
Here, the court below has stated that the procedures
established by the Missouri General Assembly when it
created the expectation of continued employment for state
employees do not provide sufficient protection against “ill
founded” decisions. In effect, the court has declared the
Missouri civil service system unconstitutional. And, as a
“super legislature”, the court has judicially rewritten Mis-
souri’s civil service system act. The issues presented will
have serious impact not only on this state but on every
other governmental body.
In Quinn v. Muscare, 425 U.S. 560 (May 3, 1976),
this Court apparently considered the question of a pre-
termination versus post-termination hearing for public em-
ployees of such importance that it granted certiorari. The
writ was subsequently dismissed as being improvidently
granted when the Civil Service System regulations under
20
attack were modified to provide a pre-termination eviden-
tiary hearing.
A.
The Decision Conflicts With the Holding of This
Court in Arnett v. Kennedy, 416 U.S. 134 (1974) and
Board of Regents v. Roth, 408 U.S. 564 (1972).
The court below has misconstrued and misinterpreted
the nature of respondent’s expectation of continued govern-
ment employment. His expectation existed not in the
abstract but in the context of the remedies established
in the same law creating his expectation and establishing
the procedures by which he could be suspended or dis-
missed. Arnett v. Kennedy, l.c. 152. In Board of Regents
v. Roth, supra, l.c. 573, this Court held “|p]roperty inter-
ests, of course, are not created by the Constitution. Rather,
they are created and their dimensions defined by existing
rules or understandings that stem from an independent
source such as state law... .” Cf. Tennessee v. Dunlop,
ineantina US. ......... 48 L.Ed.2d 660, 44 U.'S.L.W. 4811 (June
10, 1976). Concededly, a merit system employee can only
be dismissed for cause. But such employee does not have
an expectation of continuing employment until it is first
proved that there is in fact cause. Rather, he serves
at the pleasure of his employer subject to a right of rein-
statement and back pay if it is later determined after
an evidentiary hearing that the suspension or dismissal
was not justified.
The effect of the decision below is to expand and
enlarge upon respondent’s expectations of continued em-
ployment which were established by state law and did
not exist when he accepted employment. The crucial ques-
tion ‘becomes whether a state or congress in creating a
civil service system can at the same time establish the
21
procedures governing removal? Or will the federal
courts, once tenure has been created, establish for the
states and Congress the procedures which must be fol-
lowed?
Justice Rehnquist in speaking for the plurality of
the members of this Court clearly resolved that question
in favor of placing the power in the legislative branch
by stating:
“.. [Wle hold that the Lloyd-La Follette Act, in
at once conferring upon nonprobationary federal em-
ployees the right not to be discharged except for ‘cause’
and prescribing the procedural means by which that
right was to be protected, did not create an expectancy
of job retention in those employees requiring proce-
dural protection under the Due Process Clause beyond
that afforded here by the statute and related agency
regulations. We also conclude that the post-termina-
tion hearing procedures provided by the Civil Service
Commission and the OEO adequately protect those
federal employees’ liberty interest, recognized in Roth,
supra, in not being wrongfully stigmatized by untrue
and unsupported administrative charges... .” Arnett
v. Kennedy, 416 U.S. lc. 163, 40 L.Ed.2d 38-39; Em-
phasis supplied.
Again, in Board of Regents v. Roth this Court very ex-
plicitly noted that the creation and dirnensions of property
rights can and are to be creatures of state law.
Respondent’s position in this litigation is both perplex-
ing and illogical. On one hand he is claiming the benefits
of the state civil service system; yet on the other he
is challenging the sufficiency of the procedural and sub-
stantive rights it confers. Cf. Arnett v. Kennedy, l.c. 153;
Fahey v. Mallonee, 332 U.S. 245 (1947). Had it not been
22
for the substantive and procedura! guarantees provided
in Chapter 36, RSMo, respondent would have had no right
to an evidentiary hearing any time even if the stated
reasons for his discharge were false. Bishop v. Wood,
.... US. , 48 L.Ed.2d 684, 44 U.S.L.W. 4820 (June
10, 1976).
The court below clearly conflicts with the plurality
opinion in Arnett. Even though a majority of the court
was unable to agree on any particular rationale, it is clear
that a majority has held that due process does not require
a pre-termination hearing and that a post-termination hear-
ing is sufficient to clear the stigma which would be at-
tached to an unjustified dismissal. There is no decision
of this Court requiring the pre-termination “safeguards”
now called for by the court below. In fact, petitioners
have found only one court decision which imposes these
requirements. Thurston v. Dekle, 531 F.2d 1264 (5th Cir.
1976), cert. pending, No. 76-5224. The pre-termination
procedures present in Arnett were not mandated by this
court. Rather, they were established by Congress when
they “fettered” the otherwise unlimited right of the Exec-
utive Branch to hire, suspend, or discharge employees
at will. See Cafeteria Workers v. McElroy, 367 U.S. 886
(1961); Bishop v. Wood, supra.
As a result of the court’s holding, the public employer
is relegated to one of two extremes in its personnel prac-
tices. No tenure whatsoever or a tenure system with
a full and post-termination hearing, but also pre-termina-
tion procedures.
But, the system presently provided for by state law
is similar to the common practice which exists in private
industry. The employee can be discharged at any time,
but can subsequently be reinstated with full back pay
if it is later determined through union grievance proce-
23
dures or court proceedings such as under the Civil Rights
Act or the National Labor Relations Act that the suspen-
sion or dismissal was improper. A public employer should
be no different than a private employer.
B.
The Decision Below Failed to Follow the Teachings
of This Court in Bishop v. Wood, ........ MS accemees , 48
L.Ed.2d 684, 44 U.S.L.W. 4820 (June 10, 1976), and
National League of Cities v. Usery, ....... _ | See , 49
L.Ed.2d 245 (June 24, 1976).
The rationale behind the court’s opinion was to estab-
lish procedures to minimize the “risk of error” of an inap-
propriate or unjustified suspension or dismissal. But in
Bishop v. Wood, supra, Justice Stevens on behalf of this
Court commented with respect to the role of the federal
judiciary and the function of the Fourteenth Amendment
in personnel decisions stating:
“The federal court is not the appropriate forum
in which to review the multitude of personnel deci-
sions that are made daily by public agencies. We
must accept the harsh fact that numerous individual
mistakes are inevitable in the day-to-day administra-
tion of our affairs... The Due Process Clause of
the Fourteenth Amendment is not a guarantee against
incorrect or ill advised personnel decisions.” (__ __ US.
, 48 L.Ed.2d l.c. 693; Emphasis supplied)
In Footnote 14, Justice Stevens stated that the ultimate
control of state personnel relationships is and will remain
with the states. States have the unfettered discretion to
grant or withhold tenure at will. He noted that the in-
stances in which federal courts have required pre-termina-
tion hearings is extremely rare since there is no federal
24
common law of property rights nor does every discharge
implicate a constitutionally protected liberty interest.
There, as here, Justice Stevens assumed that the rea-
sons for Bishop’s dismissal were false and unfounded. But,
because he served at the will of the city, even though
he had passed his probationary period, was a permanent
employee, and could be dismissed “if he failed to perform
up to the standards of the classification held or continues
to be negligent, inefficient, or unfit to perform his duties
...’, he has no job expectation whatsoever and no rights
to a hearing at any time even if the reasons for his dis-
missal are false.
In the recent decision of National League of Cities
v. Usery, supra, this Court clearly established that Congress
under the Commerce Clause could not regulate the states’
employer-employee relationships such as wages, hours, and
terms of compensation for overtime. The Court indicated
that such were attributes of a state’s sovereignty guar-
anteed to the states to control under the Tenth Amendment.
Likewise, we submit that the extent which a state grants
tenure to its employees is a matter which rests solely
within the state’s power. As noted previously in Board
of Regents v. Roth, supra, property interests under the
Fourteenth Amendment are not created in the Constitution
but are created and their dimensions defined by state
law. Here, the court below in the guise of constitutional
interpretation has expanded and enlarged upon respon-
dent’s expectation of continued employment. In so doing
it has infringed upon the state’s prerogative as granted
to them by the Tenth Amendment.
The court below in holding that due process requires
certain procedures to “minimize the risk of error” relied
upon one of its own earlier decisions, Wilderman v. Nelson,
467 F.2d 1173 (8th Cir. 1972) in which they held that
25
dismissal requires a pre-termination evidentiary hearing.
The validity of that holding is now suspect in light of
this Court’s intervening decisions in Bishop v. Wood, supra,
and Paul v. Davis, 424 U.S. 693 (March 23, 1976). There,
this Court held that there was no violation of a person’s
constitutional rights when public officials circulated a list
describing an individual as a “known shoplifter”.
The court below also relied upon this Court’s holding
in Goss v. Lopez, 419 U.S. 565 (1975), in which this Court
held that before a public school could expel or suspend
a student he had to be given notice and an opportunity
to rebut the charges. However, this Court did not require
a full evidentiary hearing.
Here, an employee has a right to a full evidentiary
hearing to clear his name and to determine whether the
action was proper. Furthermore, the interests at stake
between expelling or suspending a student and suspending
or dismissing an employee are totally different. Justice
Powell observed in Arnett:
“Prolonged retention of a disruptive or otherwise un-
satisfactory employee can adversely affect discipline
and morale in the work place, foster disharmony, and
ultimately impair the efficiency of an office or agency.
Moreover, a requirement of a prior evidentiary hearing
would impose additional administrative costs, create
delay, and deter warranted discharges. Thus, the Gov-
ernment’s interest in being able to act expeditiously
to remove an unsatisfactory employee is substantial.”
(L.c. 169)
The procedures now called for by the opinion below will
only be time consuming and interfere with the state’s
ability to have a competent and effective body of em-
ployees. The effect on morale to have an employee who
26
should be suspended or dismissed continuing on the job
is obvious. Nor, should the state be required to suspend
with pay pending these procedures since that would only
deplete the already overburdened state treasury. Unlike
a person receiving welfare benefits, a person who is dis-
missed is free to seek and obtain other employment in
the interim.
The procedures established by Missouri law for its
civil service employees are fair and just. Employees are
provided advance notice of the reasons prior to dismissal,
they have the right to a full evidentiary hearing including
the right to call witnesses under oath, the right to be
represented by counsel, and the right to a decision by
an impartial board, plus the right to full back pay if
the suspension or dismissal is determined to be improper.
(§$§36.380 and 36.390(5), RSMo Cum. Supp. 1975). If the
initial decision to dismiss was not justified, the employee
is made whole.
Apparently the court below in order to provide respon-
dent another opportunity to demonstrate that his dismissal
was not justified is ordering Missouri to follow certain
pre-termination procedures and then to give him another
chance for an appeal before the Personnel Advisory Board.
But, the state should not be penalized when the record
affirmatively indicates that respondent at the time of his
dismissal was advised of his remedy, knew how to perfect
an appeal, but did not.
27
CONCLUSION
A writ of certiorari should issue to review the judg-
ment and opinion of the Eighth Circuit Court of Appeals.
As discussed, the court below failed to follow the plurality
opinion of this Court in Arnett and failed to follow the
teachings of Bishop. There is no decision of this Court
requiring the pre-termination dismissal procedures now
called for by the Eighth Circuit. The issues raised herein
will have not only great impact on Missouri but on every
other public employer in the country. Consequently, the
matter should be determined by this Court—particularly,
since there was no majority opinion in Arnett and since
the makeup of the Court has changed.
Respectfully submitted,
JOHN ASHCROFT
Attorney General
DANIEL P. Carp II
Assistant Attorney General
J. Paut ALLRED, JR.
Assistant Attorney General
Supreme Court Building
Jefferson City, Missouri 65101
(314) 751-3321
Attorneys for Petitioners
Al
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 76-1170
Richard Kennedy,
Appellant,
V.
Harold T. Robb, M.D. and Patrick J. Gannon, M.D.,
Appellees.
Appeal from the United States District Court for the
Eastern District of Missouri
Submitted: September 15, 1976
Filed: December 30, 1976
Before BRIGHT and WEBSTER, Circuit Judges, and
TALBOT SMITH,* Senior District Judge.
TALBOT SMITH, Senior District Judge.
The appellant before us (hereafter “plaintiff’’), dis-
charged from his employment by .ne State of Missouri,
asserted in the District Court that he had been deprived
of liberty and property without due process under the
Fifth and Fourteenth Amendments. The assertions are
made because of the manner in which he was discharged
*TALBOT SMITH, Senior District Judge, Eastern District of
Michigan, sitting by designation.
A2
from his employment.' Upon cross-motions for summary
judgment, the District Court held for the defendants. We
reverse and remand.
The plaintiff was a nonprobationary employee of the
State of Missouri. He had been hired in December of 1968,
had served his probationary period, had received there-
after regular promotions, and had ultimately become a
Workshop Director at the St. Louis State Hospital Complex.
His performance of his duties had been rated consistently
satisfactory until May 1, 1975, the date of his eleventh and
final service report. In this report, his performance was
rated as unsatisfactory. On June 17, he was given a seven
page letter from Dr. Gannon, the Superintendent of the
St. Louis State Hospital Complex, informing him that he
was suspended without pay from such date through June
24. “at which time you are dismissed from employment.”
The suspension and discharge letter charged plaintiff with
discrimination between employees in applying work stan-
dards, of harshness to some and leniency to others, of
having abused and threatened subordinates, of falsifying
his own work records on 37 specific occasions, of failure
to comply with Department of Mental Health Operating
Regulations, of failure to meet specified deadlines in sub-
mitting reports, and, finally, of incompetence in the
management of the workshop under his direct charge, all
in specific detail.
The letter also told plaintiff that “[y]ou are advised
that you may appeal your dismissal to the Missouri
Advisory Board providing such appeal is made in writing
within 30 days of the effective date of dismissal.” No
such appeal was perfected, with the result that the Board,
1. Jurisdiction is asserted under 42 U.S.C. §§ 1983 and 1985,
as well as 28 U.S.C. §§ 1331, 1343, 1651, 2201, and 2202, “and
under the Fifth and Fourteenth Amendments to the Constitution
of the United States.” Complaint, Paragraph 6.
A3
set up by the State to entertain discharge appeals as part
of a comprehensive administrative process, has never
considered the case. The Board has authority, we note,
in a proper case, to order reinstatement of an employee
with back pay.* This action was brought directly in the
District Court; plaintiff praying for a mandatory injunc-
tion ordering his reinstatement. The District Court, as we
have noted, upon cross-motions for summary judgment,
entered judgment for the defendants. The plaintiff pros-
ecutes this appeal. He denies the specific charges made*
and in view of the fact that summary judgment was granted
for the defendants, we must accept his version of the facts,
Fed. K. Civ.P. 56(c); Arnett v. Kennedy, 416 U.S. 134,
139-140 (1974) (plurality opinion).
The plaintiff presents for review two issues. The first
is that he has been deprived of liberty and property with-
out due process, relying on the Fourteenth Amendment to
the Constitution of the United States.‘
There is no doubt that procedural due process, what-
ever its dimensions, is due an employee who demonstrates
2. The application of the doctrine of exhaustion of state
administrative remedies to § 1983 cases has not been argued to
us. See, generally, Ellis v. Dyson, 421 U.S. 426, 432-33 (1975);
Steffel v. Thompson, 415 U.S. 452, 472-73 (1974); Carpenter v.
South Dakota, 536 F.2d 759, 760 n.1 (8th Cir. 1976); Hartmann
v. Scott, 488 F.2d 1215, 1221-23 (8th Cir. 1973); Comment, Ex-
haustion of State Administrative Remedies in Section 1983 Cases,
41 U. Chi. L. Rev. 537 (1974); Note, Exhaustion of State
(‘aan Under the Civil Rights Act, 68 Colum. L. Rev. 1201
3. See note 8, infra.
4. “Plaintiff has compiled and collected papers, documents
and other memoranda, bearing on and directly refuting the al-
legations contained in exhibit 2 [the letter of discharge] * * *.”
Complaint, Paragraph 15.
5. The Fourteenth Amendment provides in relevant part:
[N]jor shall any State deprive any person of life, liberty,
or property, without due process of law * * *.
A4
either a liberty or a property interest in the constitutional
sense. Board of Regents v. Roth, 408 U.S. 564, 569-70
(1972); Perry v. Sindermann, 408 U.S. 593, 599 (1972);
Buhr v. Buffalo Public School District No. 38, 509 F.2d
1196, 1199 (8th Cir. 1974). Plaintiff claims both interests.
We will first examine the asserted property interest.
With respect to property interest, it is plaintiff’s claim
that he holds “* * * contractual rights to continuing State
employment under formal tenure programs’ as well as
* * * having a cognizable property interest in continued
employment on the basis of a de facto tenure program fos-
tered by the State and relied upon * * *.” Such property
interest, if present, being the creation of the state and not
the federal government, Bishop v. Wood, ........ |
44 U.'S.L.W. 4820, 4821 (June 10, 1976); Board of Regents
v. Roth, supra, 408 U.S. at 577, we look to the statutes of
6. On the general problems here presented, see the compre-
hensive and historical discussion, Frug, Does the Constitution
Prevent the Discharge of Civil Service Employees?, 124 U. Pa.
L. Rev. 942 (1976); Merrill, Procedures for Adverse Actions
Against Federal Employees, 59 Va. L. Rev. 196 (1973); Comment,
Fear of Firing: Arnett v. Kennedy and the Protection of Federal
Career Employees, 10 Harv. C.R.-C.L. L. Rev. 472 (1975).
7. It is uncontested that plaintiff is a nonprobationary
(“regular”) employee. See note 9, infra.
8. V.A.M.S. §§ 36.380 and 36.390 (Supp. 1976) provide:
36.380. a -cmaaaae of employee-approval for reemployment,
when
An appointing authority may dismiss for cause any em-
ployee in his division occupying a position subject hereto
when he considers that such action is required in the interests
of efficient administration and that the good of the service
will be served thereby. No dismissal of a regular employee
shall take effect unless, prior to the effective date thereof,
the appointing authority gives to such employee a written
statement setting forth in substance the reason therefor and
files a copy of such statement with the director. If the di-
rector determines that the statement of reasons for the dis-
missal given by the appointing authority shows that such dis-
missal does not reflect discredit on the character or conduct
(Footnote continued on following page)
A5
the state for its creation and extent. The applicable stat-
utes relative to the issues before us will be found in the
margin.*®
8 Footnote Continued—
of the employee, he may, upon request of the employee, ap-
prove reemployment under subsection 7 of section 36.240, in
any class in which the employee has held regular status.
Any regular employee who is dismissed shall have the right
to appeal to the board as provided under section 36.390.
36.390. Rights of appeal—regulations concerning appeals and
investigations—summary and recommendations re-
quired
7 * 7
5. Any regular employee who is dismissed or demoted
or suspended for more than three days may appeal in writing
to the board within thirty days after the effective date
thereof, setting forth in substance his reasons for claiming
that the dismissal, suspension or demotion was for political,
religious, or racial reasons, or not for the good of the service.
Upon such appeal, both the appealing employee and the ap-
pointing authority whose action is reviewed shall have the
right to be heard and to present evidence at a hearing which,
at the request of the appealing employee, shall be public. At
the hearing of such appeals, technical rules of evidence shall
not apply. After the hearing and consideration of the evi-
dence for and against a suspension or demotion the board
shall approve or disapprove such action and in the event of
a disapproval the board shall order the reinstatement of the
employee to his former position and the payment to the em-
ployee of such salary as he has lost by reason of such sus-
pension or demotion. After the hearing and consideration of
the evidence for and against a dismissal the board shall ap-
prove or disapprove such action, and may make any one of
the following appropriate orders:
(1) Order the reinstatement of the employee to his
former position and the payment to the employee of part or
all of such salary as has been lost by reason of such dis-
missal;
(2) Sustain the dismissal of such employee, unless the
board finds that the dismissal was based upon political, social,
or religious reason, in which case it shall order the reinstate-
ment of the employee to his former position and the payment
to the employee of such salary as has been lost by reason of
such dismissal;
(3) Except as provided above the board may sustain
the dismissal, but may order the director to recognize reem-
(Footnote continued on following page)
A6
The plaintiff, as a “regular employee”® of the State
was subject to dismissal only “for cause.”’® If dismissed
/
8 Footnote Continued—
ployment rights for the dismissed employees under subsection
7 of section 36.240, in an appropriate class or classes, or may
take steps to effect the transfer of such employee to an ap-
propriate position in the same or another division of service.
The Regulations of the State Merit system provide as follows:
13.2 CAUSES FOR SUSPENSION, DEMOTION AND RE-
MOVAL.
The following are declared to be causes for suspension, de-
motion, or removal cf any employee in the classified service;
however, such actions may be based upon causes other than
those herein enumerated, namely, thet the employee:
(a) Has willfully violated any of the provisions of the
“State Merit System Law” or of the rules of the Personnel
Advisory Board made in pursuance thereof;
(b) Is incompetent or inefficient in the performance of the
duties of his position (specific instances to be charged) ;
(c) Has been wantonly careless or negligent in the care of
the property of the State;
(d) Has been guilty of abusive or improper treatment to-
ward an inmate or patient of any state institution or to a
person in custody; provided the acts committed were not nec-
essarily or lawfully committed in self-defense, to protect the
lives of others or to prevent the escape of anyone lawfully in
custody;
(e) Has some permanent or chronic physical or mental ail-
ment or defect which incapacitates him for the proper per-
formance of the duties of his position;
(f) Has been habitually tardy in reporting for duty or has
absented himself frequently from duty during regular work-
ing hours;
(g) Has been convicted of a felony, or a misdemeanor in-
volving moral turpitude;
(h) Has been guilty of a scandalous and disgraceful conduct
while on or off duty where such conduct tends to bring the
state service into public disrepute.
9. A “regular employee” is defined as, “an employee ap-
pointed to a position in accordance with [the State Merit Sys-
tem Law] after successfully completing a probationary period.”
V.A.M.S. § 36.020(12) (Supp. 1976).
10. See note 8, supra.
A7
he is entitled to a post-termination" evidentiary hearing
before the Missouri Personnel Advisory Board.” After
the hearing, the Board will either approve or disapprove
the employee’s dismissal.’* If the Board disapproves the
dismissal it shall “[o]rder the reinstatement of the em-
ployee to his former position and the payment to the em-
ployee of part or all of such salary as has been lost by rea-
son of such dismissal.”
We are cited to no controlling opinion of the Supreme
Court of Missouri ruling upon the herein-cited statutes
with respect to the nature of the property rights, if any,
created thereby and our own independent research dis-
closes none.’® We find no ambiguity in the Missouri stat-
11. The dismissed employee is required to file his appeal
within thirty days after the effective date of dismissal. V.A.M.S.
§ 36.390 subd. 5 (Supp. 1976).
12. Id. The procedural safeguards available to the dis-
charged employee at the post-termination hearing are set forth in
greater detail in Merit System Rule 14.3. The discharged em-
ployee has “the right to be represented by a duly licensed At-
torney.” Rule 14.3(a)(2). The Personnel Director or Personnel
Advisory Board will issue subpoenas for witnesses or records upon
the request of the discharged employee. Rule 14.3(a)(3). The
person imposing the disciplinary action on the employee is re-
quired to attend the hearing before the Personnel Advisory Board.
Rule 14.3(b)(3). Additionally, all witnesses at the hearing must
be sworn. Rule 14(b)(6).
13. V.A.M.S. § 36.390 subd. 5 (Supp. 1976).
14. Id.
15. The case of Wolf v. Missouri State Training School for
Boys, 517 S.W.2d 138 (Mo. 1974) (en banc), although dealing
with a collateral point, may be read to support the view that
merit system employees in Missouri may be discharged only for
cause, indicating thereby that continued employment is a prop-
erty right. The Wolf court stated, in part:
“Civil service employees * * * by reason of the fact that
their tenure is made stable by the civil service laws and can
be ended only under certain prescribed conditions, are not
considered to occupy a position analogous to that of public
(Footnote continued on following page)
A8
utes." A “regular employee’? may be dismissed only for
cause shown."’ We are of the opinion that under the ap-
plicable statutes and regulations, cited supra, the plaintiff
had a property interest entitling him to procedural due
process.
At this point the question presented is what process
is “due.” See Greenhill v. Bailey, 519 F.2d 5, 9 (8th Cir.
1975). No fixed “rules” are applicable. Due process has
a flexibility determined by time, place, and circumstances.
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
We are not without guidance in this area, both in this
circuit and in the Supreme Court. As we held in Wilder-
man v. Nelson, 467 F.2d 1173, 1175 (8th Cir. 1972), “The
Fourteenth Amendment * * * compels a pretermination
hearing for state employees holding contractual rights to
continuing state employment under formal tenure pro-
Footnote Continued—
officers in respect to the question of mitigation of damages
simply because of thcir status as civil service employees.”
517 S.W.2d at 143 (quoting 150 A.L.R. 100, 102; emphasis added).
The Wolf court also stated:
{Merit System employees] are not public officers. Their
relationship is essentially one Of contract. Civil service em-
ployees simply have more safeguards built in to protect their
tenure in that relationship.
517 S.W.2d at 143 n.5 (emphasis added).
16. “Where there is no ambiguity in the state statute, the
federal court should not abstain but should proceed to decide the
federal constitutional claim.” Wisconsin v. Constantineau, 400
U.S. 433, 439 (1971) (citation omitted).
17. It was the conclusion of six members of the court in
Arnett v. Kennedy, supra, that “‘“* * * because the employee could
only be discharged for cause, he had a property interest which
was entitled to constitutional protection.” Bishop v. Wood, supra,
44 U.S.L.W. at 4821 n.8.
Cf. id.: “In this case [Bishop], a holding that as a matter
of state law the employee ‘held his position at the will and
pleasure of the city’ necessarily established that he had no prop-
erty interest.” (Emphasis in original.)
A9
grams * * *.” As for the scope and content of the pre-
termination hearing, the Supreme Court, while noting that
“due process tolerates variances in the form of a hearing
‘appropriate to the nature of the case,’” states that “the
Court has traditionally insisted that, whatever its form,
opportunity for that hearing must be provided before the
deprivation at issue takes effect.”'* ‘There are,” the Court
concedes, “ ‘extraordinary situations’ that justify postpon-
ing notice and opportunity for a hearing,’’’® but the facts
in the case before us disclose nothing of an extraordinary
situation. Plaintiff's performance of his duties had been
under investigation for a substantial period of time and no
emergency is before us.
The case of Arnett v. Kennedy, 416 U.S. 134 (1974)
has been argued to us at length. Although unable to
agree on an opinion, it was the holding of the Court that
the trial-type evidentiary hearing demanded by the non-
probationary federal employee, there before the Court, was
not required under the Fifth Amendment. But the Lloyd-
La Follette Act?® under consideration in Arnett, unlike the
Missouri statute, did provide for an opportunity to file a
written answer to the charges made. The Arnett Court,
however, did not purport to mandate any procedure as
essential to the meeting of minimal pretermination due
18. Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (citation
omitted, emphasis in original).
19. Id. at 90 (citation omitted). See, e.g., Fahey v. Mallonee,
332 U.S. 245, 253 (1947) (appointment of conservator for federal
savings and loan association without prior hearing upheld because
of “the delicate nature of the institution and the impossibility of
preserving credit during an investigation”); Central Union Trust
Co. v. Garvan, 254 U.S. 554, 556 (1921) (seizure without prior
hearing of enemy property during wartime upheld); North
American Cold Storage Co. v. City of Chicago, 211 U.S. 306
(1908) (seizure and destruction of adulterated food without prior
hearing upheld because of danger to public health).
20. 5 U.S.C. § 7501.
Al0
process requirements. What it passed on were existing
rules, not the formulation of new ones. The decision thus
did not indicate what the result would have been had
there been no pretermination safeguards whatever.”” That
is our problem.
The several opinions of the Court in Arnett have been
paralleled in severality by the various circuits in deter-
mining the parameters of pretermination due process, all
relying on Arnett. But since Arnett did not purport to
decide this issue, we think that dissection of these cases
would be fruitless. Each court relies upon its own inter-
pretation of Arnett. Guidance, however, may be found in
a post-Arnett case, Mathews v. Eldridge, 424 U.S. 319, 335
(1976), wherein it was held that:
[I]dentification of the specific dictates of due process
generally requires consideration of three distinct fac-
tors: first, the private interest that will be affected
by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Gov-
ernment’s interest, including the function involved and
the fiscal and administrative burdens that the addi-
21. “Although the question of respondent’s federal con-
stitutional right to a hearing at some time, in connection with
a discharge for cause may already have been resolved in re-
spondent’s favor in Perry ¥. Sindermann, 408 U.S. 593 (1972);
Board of Regents v. Rot)., 408 U.S. 564 (1972), and Arnett v.
Kennedy, supra, the tenured employee’s right to a prere-
moval hearing has been determined by this Court only in
the context of a statute providing notice and an opportunity
to respond in writing before removal coupled with a full
hearing after removal. See concurring opinion of POWELL,
J., in Arnett v. Kennedy, supra, at 164, 170.”
Boehning v. Indiana State Employees Association, 423 U.S. 6, 7-8
n. (1975) (emphasis in original).
All
tional or substitute procedural requirement would en-
tail.”
We are thus remitted to the balancing process. The
interests of the government in responsible and efficient
operation of its processes are clear. The retention of an
inefficient or insubordinate employee is harmful not only
to the expeditious administration of policy, but is also
detrimental to employee morale. On the other hand, we
are dealing with the employee’s livelihood. Elimination
from the payroll may well inflict extreme hardship, pos-
sibly, as here, forcing the former employee to reliance
upon public aid.** Moreover, beyond that, is the factor
of human fallibility. Mistake and misinformation are not
unknown. Decision makers in discharge cases, as pointed
out in Goss v. Lopez, 419 U.S. 565, 580 (1975),
frequently act on the reports and advice of others; and
the controlling facts and the nature of the conduct
under challenge are often disputed. The risk of error
is not at all trivial, and it should be guarded against if
that may be done without prohibitive cost * * *,
We read the disparate opinions in Arnett to agree
substantially that the possibility of unjustifiable discharge
is to be minimized in any dismissal process. But at no
stage in Missouri’s pretermination procedure is there an
opportunity for the employee to respond to the charges
made to the official responsible for making the termina-
22. See also Cafeteria and Restaurant Workers Local 473 v.
McElroy, 367 U.S. 886, 895 (1961) (footnote ours).
23. See Powell, J., concurring in part in Arnett, supra, 416
U.S. at 169: “To be sure, even a temporary interruption of in-
come could constitute a serious loss in many instances;” White,
J., concurring in part and dissenting in part in id. at 194: “The
impact on the employee in being without a job pending a full
hearing is likely to be considerable * * *.”
Al2
tion decision. Here we find a significant omission from
the procedures passed upon in Arnett where the Court
rejected the need for an evidentiary trial-type hearing.
The regulations ruled upon in Arnett provided that “the
employee shall have an opportunity to appear before the
official vested with authority to make the removal decision
in order to answer the charges made against him.’’**
The need at this stage of proposed dismissal is to
minimize the employee's risk of wrongful termination, not
a decision on the merits. That will come later, before the
Advisory Board, with the full panoply of adversary con-
frontation. It is squarely at this point that plaintiff makes
a formidable assertion, namely that he has a right to have
his say before he is fired, particularly since in this situation
the “issues of credibility and veracity * * * play a signifi-
cant role”** in the decision reached.
We thus balance the chance of error, mistake, or bias,
resulting in the disastrous termination of employment,
against the expense, the delay, and the administrative
burden of trial with counsel, testimonial presentations, and
the right of cross-examination. It is not without signifi-
cance in this regard that the Court in Mathews v. Eldridge,
supra, 424 U.S. at 333-34, noted that “[i]n only one case,
Goldberg v. Kelly, 397 U.S., at 266-271, has the Court held
that a hearing closely approximating a judicial trial is
necessary,” and continuing, “More recently, in Arnett v.
Kennedy, supra, we sustained the validity of procedures
by which a federal employee could be dismissed for cause.
They included notice of the action sought, a copy of the
charge, reasonable time for filing a written response, and
24. Arnett, supra, 416 U.S. at 143, describing, 5 C.F.R. §
752.02(b) (Rehnquist, J., plurality opinion; footnote omitted).
25. Mathews v. Eldridge, supra, 424 U.S. at 325.
Al3
an Opportunity for an oral appearance. Following dis-
missal, an evidentiary hearing was provided.’ (Emphasis
ours. )
The result of the balancing process is our holding that
procedural due process requires that the employee before
us must be given an opportunity, prior to suspension and
discharge, to make a rebuttal to the charges made against
him.** This, as he argues in his brief, is the minimum
which should have been afforded him. Beyond that we
do not go. Upon the facts presented we see no substantial
or persuasive reason to depart from “the ordinary princi-
ple, established by our decisions, that something less than
an evidentiary hearing is sufficient prior to adverse ad-
ministrative action.” We so hold.”
Under the view we have taken of the case we do not
reach plaintiff's arguments with respect to the asserted
deprivation of “liberty” protected by the Fourteenth
Amendment.
The remaining problem concerns the matter of remedy.
The case is remanded to the District Court for further
proceedings. Kennedy on this record did not receive a
due process hearing before the administrative officer who
made the termination decision. The District Court’s order
26. We do not consider, on these facts, the extraordinary
situations where summary deprivations are warranted, referred
to in Fuentes, supra, 407 U.S. at 90-93, and in note 19, supra.
27. Mathews v. Eldridge, supra, 424 U.S. at 343.
28. Cf. Johnson v. Mathews, 539 F.2d 1111, 1120-22 (8th Cir.
1976) wherein we contrasted the need for an evidentiary pre-
termination hearing in the context there presented with that pre-
sented in Mathews v. Eldridge, supra. Also to be distinguished
upon the procedures mandated, is the case of Churchwell v.
United States, F.2d , No. 76-1674 (8th Cir., Nov. 29,
1976) wherein plaintiff was afforded neither a hearing nor a
right to appeal in an alleged invasion of liberty case. We ordered
a full evidentiary hearing on the merits of her termination.
Al4
should be tailored to rectifying this defect in procedure.
Cf. Churchwell v. United States, ........ 2 paenee , No. 76-1674
(8th Cir., Nov. 29, 1976). The District Court is directed
to fashion an appropriate order which will provide for
appellant’s reinstatement to his former position, or, if that
is unavailable, to a similar or comparable position unless
within 30 days of the entry of such order the State of
Missouri acting through appellees affords appellant
Kennedy an appropriate due process hearing concerning
his dismissal before his administrative superior, followed
by aright of administrative appeal (see note 8) by Kennedy
should he feel aggrieved by the final action of his admin-
istrative superior.*®
Reversed and remanded for further proceedings con-
sistent herewith.
A true copy.
Attest:
CLERK, U.S. COURT OF AP-
PEALS, EIGHTH CIRCUIT.
29. We recognize that if Kennedy is entitled to reinstate-
ment, he is also entitled to back pay. That issue cannot be
reached until a determination is made administratively whether
Kennedy’s dismissal should now be set aside. If that be the case,
the Missouri statutes, as we have noted in note 8, provide for re-
instatement with back pay.
Al5
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term, 1976
76-1170
Richard Kennedy,
Appellant,
vs.
Harold T. Robb, MLD., et al.,
Appellees.
Appeal from the United States District Court for the
Eastern District of Missouri
The Court having considered petition for rehearing
en banc filed by counsel for appellant and, being fully ad-
vised in the premises, it is ordered that the petition for
rehearing en banc be, and it is hereby, denied.
Considering the petition for rehearing en banc as a
petition for rehearing, it is ordered that the petition for
rehearing also be, and it is hereby, denied.
January 21, 1977
Al6
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term, 1976
76-1170
Richard Kennedy,
Appellant,
Vs.
Harold T. Robb, M.D., et al.,
Appellees.
Appeal from the United States District Court for the
Eastern District of Missouri
The Court having considered petition for rehearing
en banc filed by counsel for appellees and, being fully ad-
vised in the premises, it is ordered that the petition for
rehearing en banc be, and it is hereby, denied.
Considering the petition for rehearing en banc as a
petition for rehearing, it is ordered that the petition for
rehearing also be, and it is hereby, denied.
January 24, 1977
Al7
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 75-567 C (3)
RICHARD KENNEDY, <
Plaintiff, «
vs. ee x
HAROLD T. ROBB, M.D., ET AL.,
Defendants. e
ORDER
(Filed February 12, 1976) -
In accordance with the Memorandum of this Court
filed this date and incorporated herein,
IT IS HEREBY ORDERED that this Court’s Order
and attached Memorandum of January 8, 1976, be and is
reinstated; and .
IT IS FURTHER ORDERED that the defendant shall
have judgment against the plaintiff; and
IT IS FURTHER ORDERED that the plaintiff shall
pay costs in this action.
Dated this 12th day of February, 1976.
/s/ H. Kenneth Wangelin
H. Kenneth Wangelin
United States District Judge
Als
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 75-567 C (3)
RICHARD KENNEDY,
Plaintiff,
Vs.
HAROLD T. ROBB, M.D., ET AL.,
Defendants.
MEMORANDUM
(Filed February 12, 1976)
This matter is before the Court upon the cross-mo-
tions for summary judgment of the parties. This Court
previously entered summary judgment for the defendants
for the reasons stated in an attached Memorandum on
January 8, 1976. That judgment was set aside in order
that counsel for plaintiff might file a memorandum of law
in opposition to defendants’ motion. After consideration
of the matter, the Court is of the opinion that the post-
termination hearing available to the plaintiff under Chap-
ter 36 of the Revised Statutes of Missouri, 1969, is suffi-
cient due process protection within the meaning of Arnett
v. Kennedy, 416 U.S. 134 (1974). For a further elabo-
ration of this principle of law see Davis v. Vandiver, 494
F.2d 830 (5th Cir., 1974); Burbaker v. Board of Ed., School
District 149, Cook Cty., Ill., 502 F.2d 973 (7th Cir., 1974);
McFarland v. United Stotes, 517 F.2d 983 (Ct. Cl., 1975);
Morgan v. Fletcher, 518 F.2d 236 (5th Cir., 1975); and Com-
mittee for GI Rights v. Callaway, 518 F.2d 466 (D.C. App.,
1975).
Accordingly, summary judgment will be entered for
the defendants.
Al9g
Dated this 12 day of February, 1976.
/s/ H. Kenneth Wangelin
H. Kenneth Wangelin
United States District Judge
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 75-567 C (3)
RICHARD KENNEDY,
Plaintiff,
Vs.
HAROLD P. ROBB, M.D., ET AL.,
Defendant.
ORDER
(Filed January 8, 1976)
| In accordance with the Memorandum of this Court
filed this date and incorporated herein,
. IT IS HEREBY ORDERED that the defendants’ mo-
tion for summary judgment be and is GRANTED; and
IT IS FURTHER ORDERED that the defendants shall
have judgment against the plaintiff; and
IT IS FURTHER ORDERED that the plaintiff shall
pay costs in this action.
Dated this 8th day of January, 1976.
/s/ H. Kenneth Wangelin
H. Kenneth Wangelin
United States District Judge
A20
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 75-567 C (3)
RICHARD KENNEDY,
Plaintiff,
Vs.
HAROLD P. ROBB, M.D., ET AL..,
Defendants.
MEMORANDUM
(Filed January 8, 1976)
This matter is before the Court upon the motion of
the defendants for summary judgment. The present ac-
tion was filed by the plaintiff against the defendants pur-
suant to 42 U.S.C. $1983. The plaintiff's complaint states
that he was employed by the Division of Mental Health
for the State of Missouri initially on December 3, 1968.
The plaintiff continued to be employed by the Division of
Mental Health until he was discharged from his employ-
ment on June 24, 1975. The plaintiff was advised by a
letter delivered to him on June 17, 1975, that he was to
be suspended effective on that date.
The plaintiff alleges that his discharge and suspen-
sion were made without any prior notice of the nature of
the charges against him or an opportunity to be heard in
defense of these charges. It is the plaintiff’s contention
that the lack of opportunity to be heard in his own defense
coupled with the statutory powers given to the defen-
dants combined to deprive the plaintiff of his rights, priv-
ileges and immunities secured and guaranteed to him by
the Constitution. The plaintiff complains that he has
A21
been deprived of life, liberty and property and the equal
protection of laws in violation of the Fifth and Fourteenth
Amendments since his discharge was based upon “alle-
gations of professional inefficiency, inaptitude, immorality
and dishonesty.
An examination of the memoranda filed by the de-
fendants clearly indicates to the Court that the plaintiff
was discharged pursuant to the provisions of Chapter 36
of the Revised Statutes of Missouri (1969), which provide
for a post-termination appeal hearing. It is also the opin-
ion of the Court that the plaintiff has failed to state a
cause of action for the reasons stated in Board of Regents
v. Roth, 408 U.S. 564 (1972); Perry v. Sinderman, 408 U.S.
593 (1972); and Arnett v. Kennedy, 416 U.S. 134 (1974).
Accordingly, summary judgment will be entered for
the defendants.
/s/ H. Kenneth Wangelin
H. Kenneth Wangelin
United States District Judge
ee
A22
State of Missouri
Division of Mental Health
ST. LOUIS STATE HOSPITAL COMPLEX
5400 Arsenal Street
St. Louis, Missouri 63139
June 17, 1975
Mr. Richard Kennedy
6438 Arsenal Street
St. Louis, Missouri 63139
Dear Mr. Kennedy:
You are hereby suspended without pay from your du-
ties, beginning on June 17, 1975, and continuing through
June 24, 1975, at which time you are dismissed from em-
ployment at the St. Louis State Hospital Complex of the
Department of Mental Health.
In accordance with instructions from me, a commit-
tee has conducted and completed an investigation of the
operation of the workshop and the conduct of various state
employees who function in the workshop. As a result of
that investigation, and other related information, and af-
ter careful consideration of the facts and information pro-
vided, this suspension and dismissal action is taken in ac-
cordance with Rule 13.2, 13.3 and 13.5 of the Missouri
Personnel Advisory Board. The reasons for this action
are as follows:
1. You have knowingly set up and applied unequal
standards that constitute discrimination among the em-
ployees under your supervision in the workshop. Specif-
ically, on December 6, 1974 and January 1, 1975, you issued
official memoranda to your staff describing in detail the
procedures all must comply with in their day to day per-
formance of duties in the workshop ...
A23
“This is to remind you of my memorandum of De-
cember 6, 1974 which stated the following:
All members of the Work Therapy Staff must tell
Pauline when they leave their regular work sta-
tion, where they are going, how long they expect
to be gone and how we can reach them.
In addition if you are going to leave the hospital prop-
erty for any reason you must have my permission or
Miss Seipp’s permission in advance. . . r
Yet despite these instructions to all of your staff, you re-
quie of four members of the staff—Moehle, Goodhart,
Rogers and Nichols—rigid adherence, while openly con-
doning noncompliance by the other employees of the staff
—Carter, Seipp, Taylor, Abramowitz and Cox.
These unequal standards are substantiated in quotes
from the authenticated statements of four workshop
employees.
The Statement of Elaine Goodhart, quoted in
part, provides: “. . . Other employees—Willie
Nichols, Minnie Rogers, Norma Moehle and I are
constantly watched and looked down upon. Other
employees and myself, are checked in at the be-
ginning of the day and out at the end of the day
by Helen Seipp, Supervisor (out patient). If on an
occasion I am late, I am questioned as to the rea-
son for my tardiness, even if it is less than 5 min-
utes. But on the other hand, the Foremen—Ann
Taylor and Ron Carter, and Jim Cox, can be ab-
sent whenever they want, as late as they want,
and they are never questioned and never docked
for this time... .
A24
“ Norma Moehle and myself bring our lunch
from home and sit at our desks to eat. While eat-
ing our lunch, we are often ‘isturbed regarding
our work by Mr. Kennedy, the Foremen or the
Counselors. But on the other hand, Helen Seipp
begins her lunch period at 11:00 a.m. and doesn’t
return until 1:00 p.m. During this time, she
eats her lunch and returns to her office where
she locks her door and takes a nap on a bed in
her office. Norma Moehle and myself have been
told by Helen Seipp and Mr. Kennedy, not to dis-
turb Ms. Seipp until she opens her office door,
sometime after 1:00 pm... .”
Statements of Norma Moehle, quoted in part,
provide: “. . . Mr. Kennedy appointed Helen
Seipp, Workshop Supervisor (former in-patient
and presently out-patient) to check our time when
we come in in the morning, also at noon, and
when we leave at the end of the day. We also
have to report to his Secretary, Evelyn Marshall
(patient), if we leave the office, where we are
going, how long we will be gone, and how we can
be reached. We must also get permission to leave
hospital from Mr. Kennedy or Miss Seipp for any
reason, even on our lunch period. Although some
of us are checked at noon regarding our 1/2 hour
lunch period, Helen Seipp, Supr. (out-patient )
takes 2 hours every day for lunch (11 to 1). Af-
ter eating in the cafeteria, she returns to her of-
fice which contains a bed for her. She then sleeps
until she returns at 1 p.m. She is so heavily medi-
cated, that she falls asleep on the job and at staff
meetings. We have been told never to disturb
her while she is taking her nap at noon. I used
A25
to get hot water for my coffee in her office at
noon, but was told by her to stay out.
Statements of Minnie Rogers, quoted in part,
provide: “. . . Another instance I would like to
mention is, why does Mr. Kennedy allow Helen
Seipp, Supervisor (out-patient), to take a nap
every day after lunch? She takes from 11:00 a.m.
to 1:0u p.m. off for her lunch and her nap time.
During this time we are not to disturb her, not
even for business. Mr. Kennedy stated in a meet-
ing it wasn’t anybody’s business what they did or
what he did, for he was the Director of this Pro-
gram, and they could do as they pleased. I guess
that is the reason the Foremen don’t have to work
in the afternoon when the patients are off from
work. They just sit around, laugh and talk, or
take a nap by laying their heads on the desk, but
he will make it his business to see if the Aides
and other Staff are working. . . . Some days his
foremen, Ann Taylor (ex-drug patient) and Ron
Carter (both 9 month employees) sit all day do-
ing nothing but smoking cigarettes and reading a
book. Mr. Kennedy doesn’t see that. When
brought to his attention, he stated he wasn’t aware
.
2. You have used abusive language and communi-
cated threats to certain employees of the workshop.
Specifically, in a staff meeting of all workshop em-
ployees on March 26, 1975, you yelled, cursed, pounded on
a table and pointed out specific employees—Moehle, Nich-
ols and Goodhart. You threatened these employees with
terminations if they did not follow your rules. You de-
graded them by stating they were the most undependable
A26
staff you had ever worked with. You singled out three
employees—Moehle, Goodhart and Nichols—and called
them troublemakers and stated you would cause their ser-
vice rating to suffer and that you would make out a ser-
vice rating every three months.
This unacceptable conduct is substantiated by state-
ments of Elaine Goodhart, Norma Moehle, Minnie Rogers
and Willie Nichols quoted in part as follows:
—Elaine Goodhart—". - . During a recent meeting
of the Staff, Willie Nichols and myself were accused
by Jim Cox, Foreman, of reporting him to Mr. Hasel-
horst in a letter we were supposed to have written
about him. This was not true, for no letter was ever
written. At this point, Mr. Kennedy jumped up from
his chair, and started yelling, cursing, pounding his
fist on the table and pointing his finger at Norma
Moehle, Willie Nichols, and myself, he then stated, in
front of all the Staff and a patient, that we were trou-
ble makers, that we didn’t work with other staff, and
that we were not completing our work.”
_Willie Nichols—‘*. . . I was told by Mr. Kennedy
and Ms. Seipp that I had better worry about my own
job, that what the other Workshop staff did was ‘none
of our business.’ They are the most irresponsible un-
dependable staff I have ever worked with in all my
16 1/2 years of employment, since I was employed
9-22-58. .. .
We were told by Mr. Kennedy if we have any com-
plaints about anything, we were not allowed to take
them to anybody but him, not even to Miss Gulmi,
RN. He said we must first get his permission, and
if we did not follow this rule he could have us fired,
and probably would. . . ”
A27
—Norma Moehle—“. . . Last summer when I went on
my vacation, I locked my desk. When I returned, it
was unlocked. Mr. Kennedy had the locksmith open it
so he could search through my desk (for no apparent
reason). The only things in my desk at the time were
my own personal belongings. He told me I should
have been fired for locking my desk, and threatened
that if ever I locked my desk again, he would have
me fired. Since then, he has taken my desk key away
from me, although he has had desk keys made for
other personnel, and told them to lock their desks
when not in use. Mine is open at all times. He also
made the statement, ‘What in the Hell is so important
in your desk that it has to be locked?’
At a recent staff meeting of 12 people, Mr. Kennedy
singled out 3 employees, namely, Willie Nichols, Elaine
Goodhart and myself, Norma Moehle, and labeled us
as trouble makers. He told everyone to look at us so
they would know who we were, while he paced up
and down shaking his finger in our faces and cursing
constantly. He also hollered, threatened and pounded
his fist on the table all during this meeting. Elaine
Goodhart began crying and became hysterical and af-
ter the meeting, broke down hysterically again. I of-
fered to take her to the Clinic to see a doctor, but she
was in no condition to leave her desk. I applied ice
to her face and head to quiet her down, but her nerves
and ours were shattered, and we were ignored by Mr
Kennedy for days. )
At this same meeting, Mr. Kennedy said he would see
that our Service Ratings would ‘suffer’, and stated he
would make out a Service Rating on all 3 of us every
month in the future. Also, at this meeting, when we
complained about the absenteeism of Ron Carter and
Se
A28 A29
Ann Taylor, Foremen, Mr. Kennedy told us it was Hours Claimed as
. 12)
none of our business, and that they could do as they | / = ~ o>
please, and that’s exactly what they have been doing Time Reported Attendance Unworked
d . Date To Work Report Time
ever since... .
3-7-75 9:40 a.m. 8 1 hr. 40 min.
8 You have falsified time and attendance records 3-13-75 Arv. 8:30 a.m.—
(St. Louis State Hospital Weekly Employee Attendance Dat. 11:45 a.m. 8
Report). You have been absent from work and were ob- — os
served reporting late for work and at the same time you 3-14-75 9:30 a.m. 8 1% hrs.
filed your time and attendance report, signed it, indicat- 3-17-75 8:15 a.m. 8 Y hr.
ing that you were on duty for more time than you were ae “ie —_ : ‘ —
a " a ont = . . . 4 .
actually present, causing you to receive credit for pay pur- 3-26-75 10:00 a.m. 8 2 hrs.
poses, when you were in fact, not in your assigned place 3-27-75 8:40 a.m. 8 46 min.
of work. These specific dates that you falsified the at- 3-28-75 11:30 a.m. 8 3% hrs.
tendance records, the amounts of work time improperly 4-1-75 12:30 p.m. 8 4 hrs.
credited to your account as a result of the falsification 4-2-75 8:30 a.m. 8 % hr.
follow: 9 4-3-75 8:30 a.m. 8 % hr.
OuOw: 4-4-75 8:15 a.m. a Y%, hr.
; 4-17-75 1:00 p.m. 4 hrs. AL, 4 Work %& hr.
H Claimed a ’
eon a 4-22-75 9:30 a.m. 8 1% hr.
Signed Weekly 4-23-75 9:30 a.m. 8 1% hr.
Time Reported Attendance Unworked
Date To Work Report Time 5-9-75 9:00 a.m. 8 1 hr.
5-16-75 11:00 a.m. 8 3 sch.
1-3-75 10:30 a.m. 8 2% hrs. 5-19-75 8:30 a.m. 8 \% hr.
1-8-75 9:30 a.m. 8 1% hrs. 5-20-75 8:30 a.m. 8 % hr.
1-9-75 10:00 a.m. 8 2 ~=sC+Wrss.
1-10-75 . = a.m. : - - ~— 4. You have failed to comply with Personnel Advisory
-13- mM. r. in. .
ire 10:30 aa 2 CT, 6 Work % hr. Board Rules and Regulations, Department of Mental Health
1-15-75 9:20 a.m. 8 1 hr. 20 min. Operating Regulations and written directives from your
1-22-75 2:10 p.m. § CT, 3 Work 40 min. supervisor specifically set forth as follows:
1-23-75 11:30 a.m. 2% CT, 5% Work 1 hr.
1-24-75 9:30 a.m. 8 1% hrs. EXAMPLE: You failed to comply with Personnel
1-27-75 10:10 a.m. 8 2 hrs. 10 min. Advisory Board Rule No. 11, by not submitting a timely
a ae a - a a a annual Service Report. On April 11, 1975, a signed
1-30-75 Ot Gm. g 1 hr. 40 min. . statement of Mrs. Norma Moehle reported to the Per-
sonnel Officer that her Service Report had not been
2-7-75 Absent 3% CT, 4% Work 4% hrs. . _
-13-75 10:45 a.m. 8 2% hrs. submitted for the year 73-74, due in July 1974. Fur-
-14-75 10:30 a.m. 8 2% hrs. ther, you had been apprised both verbally and in writ-
—————————
A30
ing of this missing Service Report, as late as April 17,
1975, by your supervisor. The Service Report was
finally submitted on April 17, 1975, as a result of a
directive from your supervisor, some 10 months late.
EXAMPLE: You failed to comply with Depart-
ment of Mental Health Operating Regulation No. 29,
required approval of out-of-state travel for a trip to
Chicago, Ill. from Feb. 17, 1975 to Mar. 2, 1975. The
Operating Regulation specifies the necessary advanced
approval required at the Department of Mental Health
level, and even though you were instructed verbally
prior to the trip by the Acting Assistant Superinten-
dent, Administretion, N. Alan LaConte, to secure the
necessary approvals, you failed to do so. The “OK”
by the Superintendent of St. Louis State Hospital
Complex on the memorandum of February 13, 1975,
addressed from Mr. Kennedy to Dr. Gannon concern-
ing the Chicago trip, in no way authorized any €X-
ceptions to the prescribed Operating Regulation.
EXAMPLE: On Aug. 14, 1974 you were directed
in writing by your supervisor to notify him whenever
you were to be away from the workshop during regular
working hours for workshop related work as well as
sick leave and vacation time. As a result of non-
compliance with the directive and continuing unac-
ceptable time and attendance reflected by attendance
record you were given a more restrictive written
directive on April 18, 1975 in which you were repri-
manded about your continuing absences from the
Hospital and directed to provide a doctor’s statement
for each absence of sick leave of one day or longer. You
were then absent on sick leave on April 30, 1975, May
1 & 2, 1975, and provided a doctor’s statement only
after you were again reprimanded for failing to pro-
vide the required doctor’s statement.
A3l
5. You have regularly disregarded deadlines for sub-
mission of reports and requests for action, specifically as
follows:
EXAMPLE: A memorandum of March 26, 1975,
to you, requested submission of an itemized list of
travel expenses for a trip you made to Chicago in late
February 1975, to be submitted no later than April 2,
1975. After several verbal excuses you finally sub-
mitted the required list on May 19, 1975, 47 days late.
EXAMPLE: A memorandum of May 2, 1975,
Subject: Time Reports, to you from your supervisor,
noted that time and attendance reports for the work
therapy departments were a few weeks behind in sub-
mission. Two reports for weeks of in the month of
April 1975, were actually submitted the last week of
May 1975, approximately one month later. Because of
this late submission of attendance reports, April sup-
plemental checks for Ann Taylor and Ron Carter
could not be released. This was made a matter of
record in a memorandum to you on June 13, 1975, by
your supervisor and is also contained in a memorandum
from payroll clerk to Personnel Officer on May 15
1975. |
6. Your performance of duties as workshop director
has been unsatisfactory. This unacceptable performance is
specified in a Service Report of May 1, 1975 that contains
unsatisfactory ratings in Work Quantity, Attitudes and
Habits. The reasons for the unsatisfactory remarks were
explained in detail on the Service Report, which was signed
by you, and is a part of your official personnel record.
These unsatisfactory remarks point up the failure of the
workshop program under your direction, i.e. the lack of
work for patient employees, the misuse of staff, low morale
of staff, lack of direction for assigned staff and resultant
A32
confusion therefrom and also your unsatisfactory time and
attendance record. All of the above continuing, in spite of
verbal and written counseling over a lengthy period of
time.
Your unsatisfactory performance is further specified
and described in a letter of March 4, 1975, to the Vocational
Rehabilitation Division of the Education Department, by
your supervisor, Martin Haselhorst, describing your un-
satisfactory performance as program director and the
disastrous influence you are having on the workshop. On
March 13, 1975, the Vocational Rehabilitation Division
Unit Advisor, Merrill Sindt, by letter to Dr. Robb, pro-
vided notification of withdrawal of support by Vocation
Rehabilitation, to the Department of Mental Health and
stated in part that “. . . We have carefully reviewed the
progress of all phases of the Unit Program and have con-
cluded that the sheltered workshop is not offering patient
benefits to justify maintaining the staff. Over the past
several months, patients have only had three or three and
one half hours work per day. Because of the inability of
the workshop manager (underscoring supplied) to obtain
contract, only a minimal number of patients can be placed
in the shop by our Unit or other treatment areas of the
hospital. It has reached the point where we can no
longer use the assigned staff for matching federal fund
purposes. ...”
You will be paid compensation for any leave accrual
which you have credited to your record, effective at the
time of your dismissal. You will be paid for days worked
in June, plus leave accrual on the June supplemental pay-
roll. If you wish to withdraw your retirement benefits,
you should sign and return the enclosed card.
You are advised that you may appeal your dismissal
to the Missouri Advisory Board providing such appeal is
A33
made in writing within 30 days of the effective date of
dismissal.
Sincerely,
P. Gannon
Patrick J. Gannon, M.D.
Superintendent
DDB: ge
Enclosure: R-4
This will acknowledge that I received a copy of this letter on
Date 6/17/75 Time 1:30 PM
/s/ R. Kennedy
Signature
Witness: /s/ D. D. Bezold
Signature
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.