Division of Youth Services v. Hopson

933 S.W.2d 917, 1996 Mo. App. LEXIS 1875, 1996 WL 665144
CourtMissouri Court of Appeals
DecidedNovember 19, 1996
DocketNo. WD 52613
StatusPublished
Cited by5 cases

This text of 933 S.W.2d 917 (Division of Youth Services v. Hopson) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Division of Youth Services v. Hopson, 933 S.W.2d 917, 1996 Mo. App. LEXIS 1875, 1996 WL 665144 (Mo. Ct. App. 1996).

Opinion

EDWIN H. SMITH, Judge.

This is an appeal from a decision of the Missouri Personnel Advisory Board (Board) reinstating Gil Hopson (respondent) to his former position with the Division of Youth Services (appellant). Respondent had been terminated due to an unauthorized leave of absence. The Board determined that respondent’s absence from his employment with appellant was not unauthorized as claimed by appellant.

Appellant asserts three points on appeal: 1) the Board erred in relying upon evidence of prior oral authorization for leave; 2) the Board erred in determining that respondent’s absence was “authorized”, because it failed to apply the relevant statutory and regulatory standards defining that term; and 3) the Board erred in failing to apply the “Parol Evidence Rule” when it admitted evidence concerning oral authorization extending respondent’s leave of absence.

We affirm.

FACTS

Respondent began working for Appellant in March 1976, and served as a Regional Family Specialist. Around December 5, 1994, respondent orally asked his supervisor, Elaine Koehler (hereinafter Koehler), for permission to take a leave of absence from work. Respondent testified that he told Koehler that he would be taking from one to three weeks off, depending on the financial outcome of his visit to Las Vegas. Conversely, Koehler testified that respondent asked for only one week, but agreed to contact her if he was to be gone longer. Both parties agree that after speaking with Koehler, respondent filled out a Request for Leave form, in which he only stated he would be gone for the week of December 12,1994. He testified that he intended to correct the paperwork after he returned if his time off extended beyond December 16, 1994. The Board and the trial court found that respondent’s conduct was consistent with his own and other employees’ previous leave-taking routine. Further, the trial court found that Koehler had a habit of forgetting the length of authorized leave she granted to employees under her supervision.

Other than a post card to several co-workers he sent from Hong Kong, respondent was not in contact with appellant during the days following December 19, the earliest date respondent was to return to work according to both appellant and respondent. On December 27, 1994, Koehler asked for permission from her superiors to terminate respondent for failure to return to work, and on December 29,1994, appellant sent a letter notifying respondent that he was to be terminated as of January 21, 1995. Respondent returned to work on January 3,1995, which was three weeks from the first day of authorized leave, and filled out the paperwork to supplement his Request for Leave form.

Respondent appealed his dismissal to the Board, which found that since appellant did not establish that respondent was absent from work without authorization, respondent’s dismissal was without good cause. The Board ordered that appellant be reinstated with lost salary. On review, the trial court found that the Board did not abuse its discretion in its findings, as its decision was not arbitrary, capricious or unreasonable, and the trial court upheld the decision of the Board. Appellant now appeals respondent’s reinstatement.

[919]*919STANDARD OF REVIEW

Our standard of review is set out in § 536.140,1 which states, in pertinent part:

2. The [court’s] inquiry may extend to a determination of whether the action of the agency
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

We must view the record in the light most favorable to the agency’s decision and disregard evidence that supports other findings. Clark v. Reeves, 854 S.W.2d 28, 31 (Mo.App.1993). In our appellate review, we must not substitute our judgment for that of the Personnel Advisory Board, but must treat the Board’s decision as if it had been directly appealed to this court. Prenger v. Moody, 845 S.W.2d 68, 73 (Mo.App.1992). If the evidence supports more than one contrary conclusion, we must defer to the agency’s findings of fact. Clark at 32. However, when a legal standard or application of law is at issue, our scope of review is less restricted. Gerig v. Board ofEduc., 841 S.W.2d 731, 733 (Mo.App.1992). A court reviewing an administrative agency’s decision of law is not bound by the substantial evidence test. Central Bank of Clayton v. State Banking Bd. of Mo., 509 S.W.2d 175,190 (Mo.App.1974).

I. SUFFICIENCY OF EVIDENCE TO ESTABLISH AUTHORIZATION

In Point I, appellant claims that the Board lacked competent and substantial evidence to find that respondent was orally authorized to extend his leave of one week, which he had previously requested in writing. Appellant contends that for the Board to conclude respondent’s supervisor did, in fact, orally authorize respondent to extend his leave up to three weeks, it impermissibly had to consider evidence of past conduct that indicated a recurring practice of oral authorization. We disagree.

Appellant is correct in stating that in criminal cases, evidence of prior misconduct cannot generally be used to establish the commission of a subsequent crime. See, e.g., State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993) (stating that evidence of uncharged misconduct is inadmissible to show propensity to commit such crimes). However, the criminal cases appellant directs us to do not stand for the proposition that this rule of evidence applies equally to civil actions. In civil actions, relevant evidence of custom and practice is admissible to show the occurrence of subsequent acts. See, e.g., Miles Homes v. First State Bank, 782 S.W.2d 798, 802 (Mo.App.1990) (holding that “[e]vidence of a business routine or custom may establish an act was performed”); First Nat’l Bank v. Mid-Century Ins. Co., 559 S.W.2d 50, 52 (Mo.App.1977) (holding that evidence of an insurance company’s custom and business practice was admissible to show the letter in question was properly mailed).

Here, the respondent and his supervisor, Koehler, provided the Board with two conflicting accounts as to whether Koehler gave respondent oral authorization to extend his leave. In order to rebut Koehler’s claim that she did not give respondent oral authorization to extend his leave, respondent proffered evidence of prior oral authorizations.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gorman v. Walmart Stores, Inc.
19 S.W.3d 725 (Missouri Court of Appeals, 2000)
Sanders v. Hartville Milling Co.
14 S.W.3d 188 (Missouri Court of Appeals, 2000)
Ironite Products Co., Inc. v. Samuels
985 S.W.2d 858 (Missouri Court of Appeals, 1998)
Kendrick v. Board of Police Commissioners
945 S.W.2d 649 (Missouri Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
933 S.W.2d 917, 1996 Mo. App. LEXIS 1875, 1996 WL 665144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/division-of-youth-services-v-hopson-moctapp-1996.