Section 49 Collateral Estoppel and Related Litigation

• Library: Personnel Hearings 2011

A common strategy is for the employee to raise the defense of res judicata against introduction into evidence of an incident for which the appointing authority had already warned or disciplined the employee. This occurs when the appointing authority argues that dismissal is appropriate because the employee had been disciplined or warned about the same type of conduct before. Prior discipline or warnings about these incidents do not prevent the administrative tribunal from considering them. Snyder v. Dep’t of Elementary & Secondary Educ., 952 S.W.2d 764, 770 (Mo. App. W.D. 1997).

 6 

Counsel should be aware, however, that a final decision by an administrative agency, such as a civil service commission or personnel board, can affect or be affected by factual determinations in separate litigation in other forums. The result of a board’s review of an employee’s dismissal may have a preclusive effect on triable issues of fact in a civil suit or before other administrative agencies.

In Bresnahan v. May Department Stores Co., 726 S.W.2d 327 (Mo. banc 1987), the plaintiff, who was the defendant’s former employee, lost a jury verdict for $116,000 in damages on appeal because of the collateral estoppel effect given a decision by an appeals tribunal of the Division of Employment Security, as affirmed by the Labor and Industrial Relations Commission (the Commission), that she had been fired for misconduct (theft of merchandise) connected with her work.

But the use of other administrative or judicial decisions for collateral estoppel purposes in personnel proceedings has been greatly limited by the principle that the decision, to be used for collateral estoppel purposes, must predate the effective date of the employment action, such as dismissal. In the case of a school...