In the 

Missouri Court of Appeals 

Western District

PENNY SCHROCK, APPOINTING 

AUTHORITY DEPARTMENT OF 

SOCIAL SERVICES, DIVISION OF 

FINANCE AND ADMINISTRATIVE 

SERVICES,

Respondent,

v.

XINSHENG (RANDY) GAN,

Appellant.

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WD78835

OPINION FILED: July 26, 2016

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 
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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 
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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. 
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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 36.390.52provides 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.
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(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." 
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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. 
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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)). 
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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. 
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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 
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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.
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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.

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__________________________________

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.