State v. Kansas Commission on Civil Rights

851 P.2d 1017, 18 Kan. App. 2d 116, 1992 Kan. App. LEXIS 610
CourtCourt of Appeals of Kansas
DecidedDecember 18, 1992
DocketNo. 67,584
StatusPublished

This text of 851 P.2d 1017 (State v. Kansas Commission on Civil Rights) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kansas Commission on Civil Rights, 851 P.2d 1017, 18 Kan. App. 2d 116, 1992 Kan. App. LEXIS 610 (kanctapp 1992).

Opinion

Royse, J.:

The Kansas Department of Corrections (KDOC) appeals a trial court decision upholding the order of the Kansas Commission on Civil Rights (KCCR), which found KDOC violated the Kansas Act Against Discrimination (K.S.A. 44-1001 et seq.) when it failed to employ Sharon Neria in the position qf Parole Officer II because of her sex.

Sharon Neria was a Parole Officer I in KDOC’s El Dorado office in January 1989 when a Parole Officer II position became available there. She applied for the opening, but a male applicant, James Wilson, was selected.

On March 13, 1989, Neria filed a complaint with the KCCR, alleging that KDOC denied her the Parole Officer II position because of her sex. She specifically alleged a violation of the Kansas Act Against Discrimination.

A formal hearing was conducted by the hearing officer on April 10-11, 1990. He dismissed the complaint, finding that she “failed to prove the allegations of her complaint and has not established that the KAAD was violated.”

The commission reviewed the hearing officers order and approved it in part, rejected it in part, and modified it in part. The KCCR concluded that Neria had sustained her burden to show by a preponderance of evidence that she was subjected to an unlawful employment practice by KDOC. The KCCR awarded her back pay, front pay, and damages for pain, suffering, and humiliation.

KDOC sought judicial review of the agency action in the District Court of Shawnee County, Kansas. Upon de novo review, the district court held that Neria sustained her burden of proving a prima facie case of discrimination, that the nondiscriminatory reasons advanced by KDOC for not hiring Neria were pretextual, and that Neria was entitled to back pay, front pay, and damages.

KDOC perfected an appeal to this court.

Where a district court has conducted a de novo review of a KCCR order, the scope of review is limited.

“It is clear that this court’s scope of review is to determine if, when viewing the evidence in the light most favorable to complainant, there is [118]*118substantial competent evidence to support the trial court’s findings of fact and whether-these findings are sufficient to support the trial court’s conclusions of law. ‘ “[S]ubstantial evidence” is such legal and relevant evidence . as a reasonable person might accept as being sufficient to support a conclusion.’ Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).” Kansas State Univ. v. Kansas Comm’n on Civil Rights, 14 Kan. App. 2d 428, 432, 796 P.2d 1046, rev. denied 246 Kan. 767 (1990).

The findings adopted by a trial court will not be set aside unless they are clearly erroneous. Woods v. Midwest Conveyor Co., 236 Kan.. 734, 736, 697 P.2d 52 (1985).

The first issue raised by KDOC is whether the KCCR violated , its regulations in rejecting the findings of the hearing examiner. KDOC relies on K.A.R. 21-45-17(d)(16), which provides that a presiding officer shall have authority to “[d]e termine credibility - and the weight of evidence in making findings of fact and conclusions of law or opinion and their reasons.” KDOC seems to imply that, because a presiding officer is authorized to evaluate testimony, his findings are unalterable.

This argument is without merit. K.S.A. 44-1005(1) and (n) both explicitly authorize the KCCR to approve, reject, or modify the findings and orders of a hearing examiner. K.A.R. 21-45-22(f) accordingly outlines the procedural steps to be followed once the KCCR “upholds, abrogates, changes, or modifies an original order.”

In this case, the hearing officer found that Neria failed to prove her allegations and dismissed the complaint. Upon review, the KCCR approved in part, rejected in part, and modified in part . the hearing officer’s order. The Kansas Act Against Discrimination and the KCCR’s regulations clearly authorize such action by the commission.

The second issue raised is whether the KCCR violated the prohibition on ex parte communications contained in K.S.A. 77-525(a). That statute provides:

■ “A .presiding officer serving in an .adjudicative proceeding may not communicate, directly or indirectly, regarding any issue in the proceeding while the proceeding is pending, with any party or participant, with any person who has ,a direct or indirect interest in the. outcome of the. proceeding or with any person who presided at a previous stage of the proceeding, without notice and opportunity for all parties to participate in the communication.”

[119]*119The statute does, however, authorize a presiding officer to receive aid from staff assistants, so long as the assistants do not “(1) [r]eceive ex parte communications of a type that the presiding officer would be prohibited from receiving; or (2) furnish, augment, diminish or modify the evidence in the record.” K.S.A. 77-525(b).

To support its claim that the KCCR engaged in prohibited ex parte communications, KDOC relies on the deposition of Art Solis, a staff attorney with the KCCR. That deposition, however, has not been included in the record on appeal. That omission precludes consideration of this issue. “Appellant must designate an adequate record on appeal to substantiate contentions made to the appellate court. Without such a record, claims of alleged error must fail.” Rural Water Dist. No. 6 v. Ziegler Corp., 9 Kan. App. 2d 305, Syl. ¶ 4, 677 P.2d 573, rev. denied 235 Kan. 1042 (1984).

The next issue raised is whether the KCCR properly served KDOC so as to obtain personal jurisdiction over the agency. KDOC contends that the KCCR did not serve a copy of the complaint on the attorney general or an assistant attorney general and, thus, failed to comply with K.S.A. 60-304(d)(5).

K.S.A. 44-1005 establishes procedural requirements for the KCCR. In particular, 44-1005(d) states:

“After the filing of any complaint by an aggrieved individual, by the commission, or by the attorney general, the commission shall, within seven days after the filing of the complaint, serve a copy on each of the parties alleged to have violated this act, and shall designate one of the commissioners to make, with the assistance of the commission’s staff, prompt investigation of the alleged act of discrimination.”

The KCCR has adopted a regulation which sets forth the methods for service:

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Related

Woods v. Midwest Conveyor Co.
697 P.2d 52 (Supreme Court of Kansas, 1985)
Hopkins v. State
702 P.2d 311 (Supreme Court of Kansas, 1985)
Williams Telecommunications Co. v. Gragg
750 P.2d 398 (Supreme Court of Kansas, 1988)
Kansas State Univerity v. Kansas Commission on Civil Rights
796 P.2d 1046 (Court of Appeals of Kansas, 1990)
Rural Water District No. 6 v. Ziegler Corp.
677 P.2d 573 (Court of Appeals of Kansas, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
851 P.2d 1017, 18 Kan. App. 2d 116, 1992 Kan. App. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kansas-commission-on-civil-rights-kanctapp-1992.