A man must drop his allegation that his employer’s lawyer aided and abetted discrimination in court, after a split Aug. 9 Missouri Supreme Court opinion.
Jim Swoboda alleges that his employer, the Kansas City Board of Police Commissioners, retaliated against him after he testified in support of another officer’s discrimination claim. His second claim was that the board’s Armstrong Teasdale attorney allegedly told Swoboda before deposition and at trial that Swoboda should consider his career and how his testimony would affect the police department.
The Missouri Commission on Human Rights dropped the claim against Armstrong Teasdale before a Jackson County circuit judge ordered the MCHR to investigate the claim, and the commission and the law firm appealed.
David McCain, who serves as deputy chief counsel for the Missouri Attorney General’s Jefferson City Office, represents MCHR. Chris Nuelle, an AGO spokesman, said the office declined to comment at this time.
During Feb. 1 oral arguments, McCain claimed that no employer-employee relationship existed between Swoboda and Armstrong Teasdale, and argued that a writ of mandamus was improper for what he believed to be an issue of first impression.
Judge Mary R. Russell wrote the 22-page majority opinion explaining why the majority of the court en banc agreed with McCain.
“Mandamus proceedings may be used to enforce a clear, specific, unequivocal right that is presently existing,” Russell wrote. “They cannot be utilized to adjudicate whether an individual is afforded a right but, rather, can compel performance of a right only that has already been established.”
Judges W. Brent Powell, Zel Fischer and Robin Ransom concurred in the judgment that reversed and remanded the lower court decision.
Alexander Edelman of Edelman, Liesen & Myers represents Swoboda. He did not respond to a call requesting comment by press time. During oral arguments, Edelman cited Lampley v. MCHR, a 2019 case in which a gay man whose behavior did not align with male stereotypes brought a sex discrimination claim before MCHR, claiming that both cases appealed with a novel legal issue and procedural issues.
In line with his comments during oral arguments, Judge Paul C. Wilson agreed with Edelman’s argument in his 23-page dissent. Wilson said up front that he believed this ruling is unconstitutional, stating that Article V, section 18 of the state constitution calls for the court to establish how rights are implemented in practice.
“The legislature has done its part, enacting sections 536.1001 and 536.150 and related provisions, but this Court increasingly is failing to uphold its constitutional obligation to do the same,” Wilson said.
Judges Patricia Breckenridge and George Draper concurred with the dissent, which stated the majority opinion “significantly changes the law and weakens this constitutional and statutory right to judicial review of administrative decisions in noncontested cases.”
Wilson also stated that the majority opinion relied on “inapplicable precedent” and ignored the state constitution and the statute at issue.
“Future litigants will have to guess their way through a seemingly endless procedural shell-game in hopes of securing the judicial review of administrative decisions to which they are entitled,” Wilson wrote. “Faithful interpretation of the constitution and defense of the right it guarantees demands more.”
Swoboda’s case against his employer continues before MCHR without his claim against Armstrong Teasdale and the lawyer.
The case is State ex rel. Jim Swoboda v. Missouri Commission on Human Rights et al., SC99000.