Barrett v. Cole Cty.

687 S.W.3d 685

David BARRETT, Appellant,

v.COLE COUNTY, Missouri, Respondent.

WD 86414

Missouri Court of Appeals, Western District.

OPINION FILED: APRIL 2, 2024

Appeal from the Circuit Court of Cole County, Missouri, The Honorable Craig Everett Hellmann, Judge

Nimrod Thomas Chapel, Luke North, Jefferson City, MO, for appellant.

Peter Joseph Dunne, Sarah Michelle Boyce, Saint Louis, MO, for respondent.

Before Division One: Alok Ahuja, Presiding Judge, Cynthia L. Martin, Judge and Thomas N. Chapman, Judge

Cynthia L. Martin, Judge

David Barrett ("Barrett") appeals from the trial court’s judgment granting Cole County, Missouri’s ("Cole County") motion to dismiss Barrett’s amended petition which asserted employment discrimination and retaliation claims under the Missouri Human Rights Act¹ ("MHRA"), and which requested section 536.150 judicial review of Cole County’s termination of Barrett’s employment. Barrett asserts that, contrary to the trial court’s conclusion, his amended petition sufficiently stated cognizable claims for relief. We affirm the trial court’s dismissal of Barrett’s claims seeking section 536.150 judicial review, reverse the trial court’s dismissal of Barrett’s MHRA claims, and remand this matter for further proceedings consistent with this opinion.

Factual and Procedural Background

[1] In reviewing the trial court’s dismissal of a petition for failure to state a claim, we assume that all assertions set forth in the petition are true. Loomis v. Bowers, 645 S.W.3d 633, 635 n.3 (Mo. App. W.D. 2022). The facts herein discussed are thus drawn from our review of the allegations in Barrett’s dismissed amended petition ("Amended Petition").

Barrett worked as a Deputy Sheriff for Cole County for approximately fifteen years. On January 19, 2021, Barrett was suspended with pay while the Cole County Sheriff’s Department ("the Department") conducted an internal investigation regarding whether Barrett abused his authority and was incompetent. On February 17, 2021, the internal investigation expanded to include an allegation of offensive conduct and use of offensive language. The internal investigation resulted in a February 19, 2021 report prepared by Major A. B. The report concluded that the allegations of abuse of authority and use of offensive conduct and language were neither sustained nor founded, but that the allegation of incompetence was sustained. After the report was issued, Barrett was directed to meet with the Sheriff, J. W. ("Sheriff’). A meeting was scheduled for February 22, 2021.

Pursuant to a dispute resolution procedure set forth in the Cole County Personnel Policies Handbook, Barrett filed a grievance on February 20, 2021, raising issues with Major A. B.’s February 19, 2021 report. On the same day, Barrett also filed a personnel complaint with the Sheriff.

Barrett met with the Sheriff on February 22, 2021. Though Barrett was not terminated on that day, the Sheriff told Barrett during the meeting that the reasons for his looming termination had "built up for a couple of years." Barrett asked the Sheriff if his termination could be delayed until after his retirement eligibility, and the Sheriff said he would take that request under advisement.

The Sheriff terminated Barrett’s employment on February 25, 2021, by letter that stated, "I have lost trust in your ability to perform your job." On that same day, the Sheriff informed Barrett by letter that he had "checked into" Barrett’s grievances filed in response to Major A. B.’s February 19, 2021 internal investigation report and "did not substantiate any of them."

By letter dated March 2, 2021, Barrett filed an appeal with the Cole County Commission. In one paragraph of his Amended Petition, Barrett states that he was appealing his termination to the Cole County Commission. In other paragraphs of his Amended Petition, Barrett asserts that he was appealing the Sheriff’s determination about his grievances to the Cole County Commission. The Cole County Commission advised Barrett by letter dated March 10, 2021, that it was refusing to hear his appeal. Barrett characterizes the Cole County Commission’s decision as a refusal to hear an appeal from his termination in one paragraph of the Amended Petition, and as a refusal to hear an appeal from his grievances in another paragraph of the Amended Petition.

In addition to filing an appeal with the Cole County Commission, on a date not specified in the amended petition, Barrett requested a hearing pursuant to section 57.275. Section 57.275 permits a dismissed full-time deputy sheriff, within three working days of receipt from the sheriff of the grounds for dismissal, to request a closed hearing before a hearing board appointed by the sheriff to determine facts which are then forwarded to the sheriff for consideration in his sole discretion. Barrett’s section 57.275 closed hearing took place on March 15, 2021. The hearing board issued findings of fact on the same day. In the Amended Petition, Barrett represents that the hearing board found: (1) that Barrett’s investigation of an assault was limited and incomplete, resulting in a false arrest; (2) that Barrett’s conduct violated the Department’s code of conduct related to abuse of authority; and (3) that the Sheriff has complete authority over the employment of deputies pursuant to section 57.201, and that deputies serve as at-will employees.

Barrett filed a charge of discrimination with the Missouri Commission on Human Rights ("the Commission") on August 10, 2021. The Commission issued Barrett a right-to-sue letter on March 17, 2022. Barrett filed a petition for damages in the Circuit Court of Cole County on June 3, 2022. On July 18, 2022, Cole County filed a motion to dismiss the petition for failure to state a claim or, in the alternative, for a more definite statement. The trial court granted the motion to dismiss, and gave Barrett twenty days to amend his petition.

Barrett filed the Amended Petition on February 2, 2023. The Amended Petition alleged that, in February 2013, one of Barrett’s Black co-workers ("Co-Worker") was wrongfully demoted from sergeant to deputy because of his race. According to the Amended Petition, Co-Worker sought legal advice from Barrett, who is also an attorney.

Barrett advised Co-Worker to obtain counsel and to pursue legal and equitable remedies against Cole County. Co-Worker filed suit against Cole County in July 2014. When the Sheriff, who at that time was the Department’s chief deputy, asked Barrett to discuss Co-Worker’s suit, Barrett advised the Sheriff that he could not discuss the matter because he had advised CoWorker to pursue the action. Co-Worker and Cole County settled the lawsuit in October 2018.

The Amended Petition further alleged that Barrett had privately obtained genetic testing and discovered that he had "substantial African American ancestry." Prior to the genetic testing, Barrett believed that he was Caucasian, consistent with his physical appearance. Approximately sixty days before his termination from the Department, Barrett told the Sheriff that he is Black. Barrett was suspended with pay and the internal investigation of Barrett began approximately thirty days later. Barrett alleged in his Amended Petition that, prior to disclosing that he is Black to the Sheriff, the conduct for which he was later punished had been accepted and tolerated, but that same conduct was used as a basis for discipline, punishment, and termination after his disclosure to the Sheriff.

The Amended Petition set forth six claims for relief: (1) race or color discrimination in violation of the MHRA ("Count I"); (2) perceived race or color discrimination in violation of the MHRA ("Count II"); (3) unlawful retaliation in violation of the MHRA ("Count III"); (4) associational discrimination and retaliation in violation of the MHRA ("Count IV"); (5) denial of due process in violation of the Missouri Constitution because either the Sheriff’s or the Cole County Commission’s rejection of his grievances was a final determination in a non-contested administrative proceeding entitling him to section 536.150 judicial review to clear his name ("Count V"); and (6) judicial review pursuant to section 536.150 of the section 57.275 hearing board’s factual findings because they were unconstitutional, unlawful, unreasonable, arbitrary or capricious, or involved an abuse of discretion ("Count VI").

Cole County filed a motion to dismiss the Amended Petition for failure to state a claim upon which relief can be granted or, in the alternative, for a more definite statement ("Motion to Dismiss"). The Motion to Dismiss asserted that Barrett failed to plead facts to support each count of the Amended Petition and instead pleaded "mere speculative conclusions."

With respect to the four claims of violations of the MHRA, the Motion to Dismiss claimed that the Amended Petition failed to plead facts alleging that Barrett’s race or color, perceived race or color, or association with Co-Worker were motivating factors in the termination of Barrett’s employment. The Motion to Dismiss then addressed the pleading deficiencies in each count, asserting that: (1) Count I failed to plead facts detailing the infractions for which the Department investigated Barrett, how Cole County changed its treatment of Barrett due to his race, how he was treated differently than similarly situated Caucasian employees, and whether he was qualified to remain a deputy for the Department; (2) Count II failed to plead facts detailing whether Cole County perceived Barrett to be Black, whether Barrett was qualified to remain a deputy for the Department, and how Barrett was treated differently than similarly situated Caucasian employees; (3) Count III and Count IV failed to plead facts establishing that Barrett made a complaint regarding discrimination against him or Co-Worker and that Barrett’s termination resulted from any complaint Barrett made regarding discrimination; and (4) Count IV...