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ARTICLES:

Government Employees, generally

First a BIG Caution, and then a brief introduction to some of the rights of Government employees:

CAUTION: The info on TimsLaw.com is written for the private sector, not the government sector. That’s because so much is (or may be) different for government employees in terms of your rights, your deadlines, who you complain to, and how you must resolve workplace disputes. See below for more details.

Choose your category of Government Employment for a brief introduction to your rights:

Federal Government employees who work in Missouri

Missouri State Government employees

City and County municipal employees in Missouri

Federal Government employees who work in Missouri

Your rights are complex to understand and difficult to describe. To avoid confusion, I am going to decline to tell you any specifics, and decline to tell you specific deadlines. Your deadlines are ridiculously short. You are probably wise if you “immediately” complain. Any delay could cost you your rights.

When something happens that you think is unfair or discriminatory, complain. If you don’t know who to complain to, contact human resources or a lawyer. Visit the web site of the Federal Government agency you work for, which may have complaint information. Consider hiring a lawyer to help you make the complaint, because everything you say in the complaint will be used against you, and everything you do not say will be used against you. I do not want to go on record with telling you the number of days you might have to make your complaint, because the number of days varies with the nature of your complaint and the stage of the process you may have already started. Suffice it to say that you must quickly complain of any act of discrimination or unfairness, or risk losing your rights. You must also complain to the right office or agency. It gets very complicated.

The Federal Government’s lawyers just love to get your complaints thrown out when they find a flaw in the timeliness of your complaint, or they find that you complained to the wrong office, or failed to “perfect” your complaint after EEO counseling.

I am going to give you some general information and point you at some other sources.

GENERAL INFORMATION about Federal Employee rights regarding discrimination: If you feel discriminated against because of any of the traditional protected categories such as gender, race, age, disability, national origin, etc., you must almost immediately make a complaint within your agency’s internal EEO office. Here is a link to a page on the Equal Employment Opportunity Commission (EEOC) web site, where the EEOC attempts to describe your internal EEO complaint rights if you feel discriminated against. FYI: The EEOC kind of supervises the way in which Federal Agencies process internal EEO complaints.

GENERAL INFORMATION about Federal Employee rights regarding mistreatment or unfairness that is not related to one of the traditional protected categories such as gender, race, age, disability, national origin, etc: You might need to make a complaint to the Merit System Protection Board. Here is a link to the Merit System Protection Board web site where you can get some more detailed information.

GENERAL INFORMATION about Mixed Cases: A Mixed case is a case where you have both discrimination claims and also Merit System claims. Visit the EEOC and Merit System web sites I linked to above, because those sites explain how Mixed Cases are to be handled.

Here is another source of information for Federal employees: See the web site of the . The link takes you to the index page, where the major topics covered on the site are listed.

Sometime, take some time and read the government-employee court cases available on the web. You might find some through Google (internet search engine) or LexisOne (free case law research site). The government (Federal and Missouri) just loves to get your case thrown out of court because you misunderstood your deadlines and waited a little too long, or filed the wrong kind of complaint or filed with the wrong office. The government complaint procedure is so complex and full of deadline traps that most lawyers I know are intimidated by it. That’s one of the reasons why so few lawyers do employment law.

Remember: if you are a government employee who is being treated unfairly, you have extremely short deadlines to make initial complaints, and you must complain to the right office within that short deadline period. Government workers must file complaints rather than sit back and see what’s going to happen. Before you can figure out what’s going on, your deadline has passed. Call someone and get some advice, and file the complaint.

REFORM NEEDED: The Federal Government should overhaul the entire complaint process for federal employees. The government should designate that all complaints are made to a single office, and lengthen all deadlines, and each type of complaint should have the same deadline scheme and procedural steps. All complaints should be handled the exact same way, no matter whether it is discrimination or some other form of unfairness. The current process is so convoluted that it is actually unfair to the employees it was designed to serve.

Missouri State Government Employees

Your rights are complex to understand and difficult to describe. To avoid confusion, I am going to decline to tell you specifics. For some types of complaints your deadlines are ridiculously short. So you are probably wise if you “immediately” complain of any unfairness. Any delay could cost you your rights.

When something happens that you think is unfair or discriminatory, complain. If you don’t know who to complain to, you could try contacting your human resources representative, or a lawyer, or visit the web site of the agency you work for which may have complaint information. Consider hiring a lawyer to help you make the complaint, because everything you say in the complaint will be used against you, and everything you do not say will be used against you. I do not want to go on record with telling you the number of days you might have to make your complaint, because the number of days varies with the nature of your complaint and the stage of the process you may have already started. Suffice it to say that you must quickly complain of any act of discrimination or unfairness, or risk losing your rights. You must also complain to the right office or agency. It gets very complicated.

The Missouri Government’s lawyers just love to get your complaints thrown out when they find a flaw in the timeliness of your complaint, or they find that you complained to the wrong office.

GENERAL INFORMATION for Missouri State Employees regarding discrimination complaints based on gender, race, age, disability, national origin, etc: If you feel discriminated against because of any of the traditional protected categories such as gender, race, age, disability, national origin, etc., you have the right to file a charge of discrimination. For more information you can visit the web site of the Missouri Commission on Human Rights (MCHR). You must file with the MCHR within 180 days of the discrimination to protect your rights under Missouri’s discrimination laws.

NOTE: For some types of discrimination, the Federal laws do not apply to state government employees, and so the MCHR is your only avenue of complaint. The Federal age and disability discrimination laws have been ruled to not apply to State Government Employees (other Federal discrimination laws could be next on the chopping block). File with the MCHR within 180 days to protect your rights. At your peril, you could choose to file with the Equal Employment Opportunity Commission (EEOC), but you still must file within 180 days to protect your rights under Missouri law. You have 300 days, in total, to file with the EEOC to protect your rights under the Federal discrimination laws that still apply to State workers.

TRAP: Filing a charge of discrimination with the MCHR or the EEOC does NOT stop the clock from ticking on your short deadlines to file other proper complaints with other agencies that might also be appropriate. There is no provision in State of Missouri law for handling “mixed cases” similar to the rules that apply to Federal employees. So, if your case is a “mixed case” of discrimination and non-discrimination complaints, you will probably want to file several complaints with different agencies. Sometimes the same action by the State against you gives you the right to file with the EEOC, MCHR and the Personnel Advisory Board, as well as with other agencies.

GENERAL INFORMATION for Missouri State Employees regarding complaints of mistreatment or unfairness, OTHER THAN complaints of discrimination based on gender, race, age, disability, national origin, etc: You have ridiculously short deadlines to file a complaint. Depending on what has happened to you, maybe the Personnel Advisory Board will take your complaint (don’t wait – file now). But depending on what happened and why, and maybe depending on your Agency, it’s possible that you may need to complain to a different office, rather than the Personnel Advisory Board. If you make the wrong decision about who to complain to, you may lose your rights. These are important and difficult decisions. State agencies will be reluctant to tell you who to complain to. Your own agency will not inform you that if they take your internal grievance you may be missing the opportunity to file with other agencies.

TRAP: If you complain to the wrong office, your deadline is probably not going to be tolled for filing with the right office. So while your complaint is sitting in some agency’s complaint office, the deadline is still running for filing a complaint with the proper agency.

Remember: if you are a State of Missouri employee who is being treated unfairly, you have short deadlines to make initial complaints, and you must complain to the right agencies or else risk losing your rights. State of Missouri employees must file complaints rather than sit back and see what’s going to happen. Before you can figure out what’s going on, your deadline has passed. Call someone and get some advice, and file the complaint.

REFORM NEEDED: The Missouri Government should overhaul the entire complaint process for state employees. The government should designate that all complaints are made to a single office, and lengthen all deadlines, and each type of complaint should have the same deadline scheme and procedural steps. All complaints should be handled the exact same way, no matter whether it is discrimination or some other form of unfairness. The current process is so convoluted that it is actually unfair to the employees it was designed to serve.

EXAMPLE of how bad some laws are regarding Missouri State Government employees: I have critiqued one statute that attempts to provide some protection against retaliation, in limited circumstances, to State Government employees who report mismangement in State Government agencies. See Weak whistleblower protections for state employees in RSMo 105.055, where I deconstruct and criticize the statute, and illustrate how a protective law can be drafted so weakly that the law fails to provide meaningful protections.

UPDATE: Regarding the Family Medical Leave Act (FMLA) and State Government Employees. On May 27, 2003 the US Supreme Court issued an opinion in the case of Nevada Department of Human Resources v. Hibbs (PDF file, opens in new window). In Hibbs, the Court ruled that FMLA is constitutional and validly applies to protect the rights of state government employees when the leave is to care for a family member. The Court did not rule on the other provisions of FMLA, such as the right to take medical leave for your own sickness. It remains possible that in a later case, the Court could decide that FMLA does not apply to state workers who have been denied FMLA leave for their own serious health conditions. We’ll have to wait and see what lower courts do with the Hibbs decision.

The doctrine of Sovereign Immunity will be used against you in most types of court cases you try to file, with the possible exception of those cases clearly completely covered by Missouri statutes. I talk a little about this doctrine down below.

Missouri Service Letter rights for State employees: See Mo Merit System Employees can demand a Service Letter using Mo Law 36.470.

City and County employees in Missouri.

Generally speaking, City and County employees enjoy similar protections against Discrimination as State employees do. If you feel Wrongfullly Terminated, or Retaliated against, you may have special appeal or grievance rights, such as a right to a special hearing before an administrative board, or a statute might protect you under the circumstances. You might have a good right to sue in court under tort law, but you might not. It depends on whether soveriegn immunity might apply (explained a bit below), and it’s case by case.

The doctrine of Sovereign Immunity will be used against you in most types of court cases you try to file, with the possible exception of those cases clearly completely covered by Missouri statutes. I talk a little about this doctrine down below.

Your special internal appeal rights may vary from municipality to municipality. You might be an at-will employee or you might not be, depending on the municipal ordinances and possibly the employment policy handbook you received when you were hired. The key to whether you are “at will” or not is whether the employer can fire you without good cause and whether you are entitled to a “contested” special hearing where you can present evidence.

The key rights that might be given to you by ordinance or handbook are the following:

  • The right to only be terminated for good cause as defined in the ordinance or handbook
  • The right to appeal any discipline or termination to a special Board or Commission
  • The right to representation of your choice at any such appeal hearing

If you have special rights given to you by the city or county ordinances or the employment handbook, then you probably have very short deadlines to exercise those rights. For one example, if you are fired, you may have the right to have a County Commission or Board of Trustees hold a hearing to review your termination. You might, for example, have only 10 days to make the request for a hearing, or else your special appeal rights are lost – it all depends on the procedures outlined in the ordinances or employment handbook.

If you are allowed a hearing, you will probably have the right to appeal to the court system to have the judge review what the board or commission decided. You will have a very short deadline to make your appeal to the court system. See a lawyer right away.

As a municipal employee, you have the right to file a charge of discrimination with the Missouri Commission on Human Rights (MCHR). You must file with the MCHR within 180 days of the discrimination to protect your rights under Missouri’s discrimination laws. You could choose to file with the Equal Employment Opportunity Commission (EEOC), but you still must file within 180 days to protect your rights under Missouri law. You have 300 days, in total, to file with the EEOC to protect your rights under the Federal discrimination laws.

Be aware of the term “Sovereign Immunity”

If you are a government employee, at some point the government employer will try to argue it is immune from your type of case, under the guise of “sovereign immunity”.

This was the inherent immunity that Kings enjoyed in the old days, and it lives on in many ways in the USA.

Here’s just ONE example: As recently as April 2006 the Missouri Supreme Court decided that soveign immunity might apply to bar a claim of wrongful termination and retaliation in a particular case against a particular city under particular circumstances:

From Kunzie v. City of Olivette, case number: SC87022 (Missouri Supreme Court 2-28-06). Go to Court Homepage and click Supreme Court then Search for “Kunzie”.

The City’s Immunity as Applied to Tort Claims

Municipality immunity is an oft-confused area of law. “Under the common law, only the State and its entities were entitled to complete sovereign immunity from all tort liability.” Junior College Dist. of St. Louis v. City of St. Louis, 149 S.W.3d 442, 447 (Mo. banc 2004). “Municipal corporations traditionally have had immunity, however, for those actions they undertake as a part of the municipality’s governmental functions–actions benefiting the general public.” Junior College, 149 S.W.3d at 447; State ex rel. Trimble v. Ryan, 745 S.W.2d 672, 673-74 (Mo. banc 1988). Municipalities have no immunity for torts while performing proprietary functions — actions benefiting or profiting the municipality in its corporate capacity. Junior College, 149 S.W.3d at 447.

This Court has held that termination of a city employee is a governmental function. State ex rel. Gallagher v. Kansas City, 7 S.W.2d 357 (Mo. banc 1928). See also Feuchter v. City of St. Louis, 210 S.W.2d 21, 25 (Mo. 1948), and Nichols v. City of Kirksville, 68 F.3d 245, 247 (8th Cir. 1995) (citing Gallagher, 7 S.W.2d at 361).

Kunzie has provided no sound reason to deviate from Gallagher. Personnel decisions and the internal administration of operating a municipal department are governmental. As such, the city is protected by governmental immunity unless some exception applies. In this case, the only applicable exception would be the municipality’s procurement of liability insurance. Section 537.610.1 allows political subdivisions of the state to purchase liability insurance for tort claims and waives sovereign immunity “only to the maximum amount of and only for the purposes covered by such policy of insurance” or self-insurance plan.

Kunzie alleges that the city maintains liability insurance “to handle the consequences of employment related actions brought against them.” By doing so, Kunzie has sufficiently alleged facts that, if proved, would bring his tort claims within the purview of the statute. Because the trial court dismissed Kunzie’s petition prior to the commencement of discovery, Kunzie was not able to prove the existence and content of the insurance policy.

Kunzie’s tort claims for wrongful discharge and retaliation may be barred. Because the case is remanded to the trial court, Kunzie will have the opportunity to prove if, and to what extent, the city maintains liability insurance that covers his claims. If the city maintains insurance that covers these types of claims, then it will have waived its immunity under section 537.610 for the specific purpose of and to the extent of its insurance coverage. A municipality’s procurement of insurance constitutes an absolute and complete waiver of all immunities.(FN4)

Article written by | Tim Willoughby


***** END OF ARTICLE *****

Timslaw.com Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

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Phil Willoughby, Attorney
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