                                       In the
                       Missouri Court of Appeals
                                Western District
PENNY SCHROCK, APPOINTING                   )
AUTHORITY DEPARTMENT OF                     )
SOCIAL SERVICES, DIVISION OF                )   WD78835
FINANCE AND ADMINISTRATIVE                  )
SERVICES,                                   )   OPINION FILED: July 26, 2016
                                            )
              Respondent,                   )
                                            )
v.                                          )
                                            )
XINSHENG (RANDY) GAN,                       )
                                            )
               Appellant.                   )

              Appeal from the Circuit Court of Cole County, Missouri
                        The Honorable Jon E. Beetem, Judge

 Before Special Division: Mark D. Pfeiffer, Chief Judge, Presiding, Gary D. Witt, Judge
                           and Anthony Rex Gabbert, Judge

                                  INTRODUCTION

      Appellant Xinsheng (Randy) Gan ("Employee") appeals from the judgment of the

Circuit Court of Cole County, which reviewed a decision by the Administrative Hearing

Commission ("Commission") that had determined that the termination of Employee's

employment with the Missouri Department of Social Services ("Department") was

wrongful. Respondent Penny Schrock ("Employer"), representing the Department, had
sought review of the Commission's decision by the circuit court. The circuit court found

that the Commission had used the wrong legal standard in determining whether

Employee's dismissal was for "racial reasons" and remanded the case back to the

Commission. Employee seeks to appeal the circuit court's judgment, prior to the remand

back to the Commission, and seeks affirmance of the Commission's decision. Because

this Court reviews the decision of the Commission and not the circuit court, Employer, as

the party aggrieved by the decision of the Commission, argues the Commission erred

because it misapplied the law when it determined that Employee was dismissed for racial

reasons because the Commission found that Employee had violated several Department

policies and was insubordinate for failing to follow his employer's instructions.

                       FACTS AND PROCEDURAL HISTORY

       On February 1, 2013, Employer dismissed Employee from his job as a Research

Analyst for the Department after six years of employment. Employee was reprimanded

by the Department for various alleged offenses on multiple occasions throughout his

employment. These alleged offenses included: repeatedly falling asleep at his desk

during work, unauthorized internet use, scratching his leg during a meeting, and leaving a

meeting early. Although the Commission recognized that "there [was] cause to discipline

[Employee] … [for] using the internet for personal reasons . . . and appearing to be

sleeping at his desk in January 2013 when he was in fact meditating," it found that these

incidents were minor in nature. Further, it found that "[Employee's] race contributed to

the appointing authority's decision to dismiss him and that his conduct was not of such

serious nature as to warrant his dismissal." Accordingly, the Commission found that

                                             2
Employee's dismissal was not for the good of the service and ordered his reinstatement.

In other words, the Commission decided that cultural differences unfairly contributed to a

negative perception of Employee, thus resulting in unlawful discrimination and,

ultimately, the termination of his employment with the Department.

         Employer then sought review of the Commission's decision at the Circuit Court of

Cole County. The circuit court did not consider the substantive factual findings and legal

conclusions of the Commission's decision. Rather, the circuit court determined that the

Commission "exceeded its jurisdiction when it made a determination that race was a

contributing factor in the underlying cause" (emphasis added). Instead, the circuit court

decided that the "[Commission] can only determine if the dismissal was for racial

reasons, a sole cause type analysis . . . [and not just] that race was a contributing factor"

(emphasis added).           For these reasons, the circuit court ordered that "the cause is

remanded to the [Commission] for issuance of its order consistent with the above

analysis." Employee now appeals the circuit court's judgment.1

                                                  ANALYSIS

         At issue in the circuit court's judgment is the authority of the Commission to find

Employee was dismissed for racial reasons where race was a contributing factor in the

decision to terminate his employment. "The [Commission] is a creature of statute and



         1
           Although Employee filed this appeal as the party aggrieved by the decision of the circuit court, Employer
filed the appellant's brief under Rule 84.05(e) because she was aggrieved by the Commission's decision. "In an
appeal from a judgment of a trial court addressing the decision of an administrative agency, this court reviews the
decision of the administrative agency and not the judgment of the trial court." Atwell v. Fitzsimmons, 452 S.W.3d
670, 673 n.2 (Mo. App. W.D. 2014) (citing Bird v. Mo. Bd. of Architects, 259 S.W.3d 516, 520 n.7 (Mo. banc
2008)). "However, in our mandate, we reverse, affirm, or otherwise act upon the judgment of the trial court." Id.
See Rule 84.14.

                                                         3
has only such … authority as may be granted by the legislature." Atwell v. Fitzsimmons,

452 S.W.3d 670, 676 (Mo. App. W.D. 2014). The circuit court's judgment considered

the authority of the Commission to make a determination that "race was a contributing

factor" in the context of resolving an employee complaint raised under Chapter 36, the

State Personnel Law. Section 36.390.52 provides the following:

        Any regular employee who is dismissed or involuntarily demoted for cause
        or suspended for more than five working days may appeal in writing to the
        administrative hearing commission within thirty days after the effective
        date thereof, setting forth in substance the employee's reasons for claiming
        that the dismissal, suspension or demotion was for political, religious, or
        racial reasons, or not for the good of the service.

See also Section 621.075. Pursuant to the plain language of the statute, Employee has the

right to challenge his dismissal by filing an appeal with the Commission if he believes his

dismissal was for "racial reasons."

        Despite this clear mandate, the circuit court proceeded in its judgment to consider

1 CSR 20-3.080(4)(B), which is a regulation pertaining to personnel selection,

appointment, evaluation, and separation. The regulation's stated purpose is to "[prohibit]

discrimination and influences other than merit in the various aspects of personnel

administration." 1 CSR 20-3.080. 1 CSR 20-3.080(4)(B) provides the following:

        In any case of alleged discrimination for which a review is not provided by
        the Missouri Commission on Human Rights and Chapter 213, RSMo, or by
        other provisions of these rules, an applicant or employee who feels
        adversely affected in an opportunity for employment, in his/her status as an
        employee, or in his/her condition of employment because of this
        discrimination, under this rule, may appeal to the Administrative Hearing
        Commission for a review of the alleged discriminatory action or practice.

        2
          All statutory references are to the Revised Statutes of Missouri 2000 as currently supplemented, unless
otherwise indicated.

                                                         4
(emphasis added). The circuit court found that this regulation conflicts with the statutory

authority granted to the Commission by the legislature because, pursuant to the

regulation, the Commission can only review cases for which Chapter 213 review (the

Missouri Human Rights Act) is not provided.

        It does not appear to this Court that any such conflict exists. First, whereas

sections 36.390.5 and 621.075 apply explicitly and specifically to situations in which an

employee has been dismissed, demoted or suspended, 1 CSR 20-3.080(4)(B) is a

regulation that provides a grievance procedure for any employee who feels "adversely

affected" in opportunity for employment, status as an employee, or in conditions of

employment. 1 CSR 20-3.080(4)(B) applies more broadly than sections 36.390.5 and

621.075, as no demotion or dismissal is required for 1 CSR 20-3.080(4)(B) to apply.

Second, 1 CSR 20-3.080(4)(B) also explicitly contemplates that other regulations may

provide the authority to review allegations of discrimination. One such regulation that

the trial court failed to consider is 1 CSR 20-3.070(5), that explicitly applies to situations

in which an employee has been separated from employment. The regulation provides:

        Any regular employee who is dismissed shall have the right to appeal in
        writing to the Administrative Hearing Commission within thirty (30) days
        after the effective date setting forth in substance reasons for claiming the
        dismissal was for political, religious, or racial reasons or not for the good of
        the service.3

1 CSR 20-3.070(5)(A). Indeed, the regulations do provide what the statutes explicitly

provide: review by the Commission in cases where an employee alleges he or she has

        3
           The Department acknowledged at oral argument that discrimination, in any fashion, cannot be found to be
"for the good of the service."

                                                        5
been separated from his or her employment for racial reasons. 1 CSR 20-3.080(4)(B)

merely provides an additional mechanism for the review of allegations of racial

discrimination where no other review, whether under the MHRA or by the Commission,

has already been provided.

       However, the circuit court, in an attempt to harmonize 1 CSR 20-3.080(4)(B) with

section 36.390.5, concluded that the Commission only has the authority to determine "if

the dismissal was for racial reasons, a sole cause type analysis."          Unstated in the

judgment is exactly why a "sole cause type analysis" is appropriate and how it would

resolve the alleged conflict, as opposed to the contributing factor analysis generally used

by Missouri courts when considering claims of racial discrimination affecting

employment. See e.g., Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 819

(Mo. banc 2007) ("Nothing in this statutory language of the MHRA requires a plaintiff to

prove that discrimination was a substantial or determining factor in an employment

decision; if consideration of age, disability, or other protected characteristics contributed

to the unfair treatment, that is sufficient"); see also Templemire v. W&M Welding, Inc.,

433 S.W.3d 371, 383-84 (Mo. banc 2014) (explaining that Missouri provides greater

protection than federal non-discrimination laws in that showing an illegal factor played a

role in a discharge decision violates both the Missouri Human Rights Act and also the

workers' compensation laws). Not only is it unclear, as explained supra, as to what

conflict actually exists between the statutes and regulation considered by the circuit court,

but equally perplexing is the crafted remedy.



                                             6
      Regardless, before we may address the substantive issues presented by this appeal,

we must first consider Employer's motion to dismiss, which raises the issue of whether

this Court has jurisdiction to decide the appeal. See DeGennaro v. Alosi, 389 S.W.3d

269, 273 (Mo. App. W.D. 2013). If it is determined that jurisdiction does not exist, our

only authority is to transfer the case to the court that does have jurisdiction. Moses v.

Carnahan, 186 S.W.3d 889, 896 (Mo. App. W.D. 2006).

      A party may seek judicial review of an agency decision by filing a petition with

the proper circuit court.   See Section 536.110.     After reviewing the Commission's

decision, the circuit court "shall render judgment affirming, reversing, or modifying the

agency's order, and may order the reconsideration of the case in the light of the court's

opinion and judgment, and may order the agency to take such further action as it may be

proper to require[.]" Section 536.140.5. Pursuant to section 536.140.6, a party may

appeal from the judgment of a court reviewing an agency decision as in other civil cases.

      "Section 512.020 provides that any party aggrieved by a decision of a trial court

may appeal from any final judgment in the case." Taylor v. Civil Serv. Comm'n of St.

Louis Cty., 969 S.W.2d 763, 764 (Mo. App. E.D. 1998) (internal quotation omitted). A

judgment is final "if the agency arrived at a terminal, complete resolution of the case."

Buchheit, Inc. v. Mo. Comm'n on Human Rights, 215 S.W.3d 268, 274 (Mo. App. W.D.

2007) (citation omitted). "A final and, therefore, appealable judgment disposes of all

issues for all parties in the case and leaves nothing for future determination."

DeGennaro, 389 S.W.3d at 273 (quoting Collins v. Collins, 923 S.W.2d 487, 489 (Mo.

App. S.D. 1996)).

                                            7
       In general, a cause remanded to an agency does not constitute a final judgment,

and, therefore, is not appealable. Buchheit, 215 S.W.3d at 274-5 (citing Jones v. Mo.

Highway & Transp. Comm'n, 639 S.W.2d 182, 183 (Mo. App. S.D. 1982)). For example,

appeals are not authorized when there is a remand to an agency requiring the

consideration of additional evidence or further proceedings. See Taylor, 969 S.W.2d at

764 ("an appeal from an order remanding to an administrative tribunal for additional

proceedings is not authorized by section 512.020"). Further, whether a decision may be

appealed depends on whether or not there was a determination of the underlying merits of

the case. Fowler v. T.J. Ahrens Excavating, Inc., 431 S.W.3d 561, 562 (Mo. App. E.D.

2014). If the case was remanded without a determination of the underlying merits, the

appeal should be dismissed due to lack of final judgment. Buchheit, 215 S.W.3d at 276.

       However, in certain limited circumstances, a remand to the Commission may be

appealable. As elaborated in Buchheit, the finality of a remand to the Commission

dependent on the nature of the remand. 215 S.W.3d at 275. When "the circuit court

remands a case back to the commission based on insufficient evidence to support the

commission's decision or because the commission's decision is not supported by

substantial and competent evidence, 'there is a final judgment for purposes of appeal.'"

Id. at 275 (quoting Campbell v. Labor & Indus. Relations Comm'n, 907 S.W.2d 246, 248

n.1 (Mo. App. W.D. 1995)). In such cases, the decision to remand has been made after a

decision on the merits. Id. at 275.

       In this case, Employee argues that the circuit court’s decision to remand was not

for further proceedings, and, therefore, is final and should be appealable to this court.

                                           8
Employee reasons that the judgment was final because the remand was not for additional

fact-finding or further proceedings, but rather "to ministerially substitute the Circuit

Court's preferred legal determination for the Commission's own, leaving the Commission

no real discretion." In other words, the remand was for a simple substitution of the

Commission's legal conclusion with the circuit court's conclusion. Employee argues that

because "the circuit court had enough information to decide those questions, and thus

remanded only because it disagreed with the agency on the law, the Court of Appeals

would also have sufficient information to decide those legal questions."

       We disagree. The circuit court remanded the case to the Commission because the

circuit court found that the Commission exceeded its jurisdiction in determining whether

race was a contributing factor of Employee's dismissal. Rather than considering whether

race was a contributing factor in the decision to terminate Employee's employment, the

circuit court ordered the Commission to consider whether Employee was dismissed for

racial reasons, a sole cause type analysis, according to the circuit court. In order to

resolve this question, the Commission will be required to make new factual findings and

decide mixed questions of law and fact that previously it was not required to consider.

For example, a sole cause type analysis will require a closer look at the evidence and

discretionary judgments regarding whether violations cited by Employer for Employee's

dismissal were actually pretextual and that race was in fact the actual cause of dismissal.

Because the circuit court found that the Commission used an incorrect legal standard in

deciding whether Employee's dismissal was for racial reasons, a more lax standard as

opposed to the stricter standard proposed by the circuit court, it is akin to the court

                                            9
remanding because the Commission has made insufficient findings of fact.                                          The

Commission must be allowed to complete its work before it may be reviewed on appeal.4

See Buchheit, 215 S.W.3d at 275 (insufficient findings by the Commission prevents the

trial court from preforming its limited review function, which in turn prevents this Court

from performing its appellate function on the merits of the case).

         Moreover, despite Employee's claims to the contrary, the circuit court did not

make a judgment on the underlying merits of the case. Instead, the circuit court decided

that the Commission must consider the facts under a new legal standard, which will

require new factual findings. Accordingly, the judgment left questions unanswered for

future consideration. For example, only after the Commission makes its findings under

this new legal standard, then the circuit court will be required to determine whether the

Commission's decision is supported by competent and substantial evidence. See Section

536.140.2. No such review has yet been made by the circuit court. Unlike Buchheit,

where the merits of the case were determined by the circuit court, the legality of

Employee's termination was never considered or discussed by the circuit court. See

Buchheit, 215 S.W.3d at 274. ("In this case, the circuit court did not remand the case to

the commission because it made insufficient findings of fact. Rather, here, the circuit


         4
            As already explained in the first section of this opinion, the circuit court's finding of a conflict between
section 36.390.5 and 1 CSR 20-3.080.4(B) is perplexing. However, because we do not have jurisdiction over this
appeal, we do not have the authority to resolve that question today. Although it may seem inefficient to remand this
case back to the Commission to comply with the circuit court's judgment in this case where we have concerns over
the circuit court's legal conclusions, we must do so. This rule is important because it prevents cases from being
decided on a piecemeal basis, and, in the end, promotes judicial efficiency. Fowler, 431 S.W.3d at 563 ("The logic
behind such a rule is obvious, that being to avoid hearing appeals on a piecemeal basis. One appeal should suffice to
determine all controverted issues."). That said, to promote judicial efficiency, it may be of value for the
Commission to analyze the case on both a "sole cause" and a "contributing factor" analysis and submit both for
future appellate review.

                                                          10
court's remand was ordered after a decision on the merits"). Where there are unanswered

questions, there is not a "terminal, complete resolution of the case." Id.

        Therefore, because the cause was remanded back to the Commission for further

proceedings and factual findings and the merits of the case were not considered, the

judgment is not final and not appealable to this Court.                       This Court does not have

jurisdiction and is required by law to transfer the case to the entity that does have

jurisdiction. Moses, 186 S.W.3d at 896.

                                                 Conclusion

        The appeal is dismissed and the cause is remanded to the Commission.5




                                                    __________________________________
                                                    Gary D. Witt, Judge

All concur




        5
          As we have determined we have no jurisdiction to hear this appeal, Employee's Motion for Attorney's
Fees and Costs is denied without prejudice.

                                                       11
