Defendant's Attorney: Missouri Attorney General's Office

Description: Jefferson City, Missouri civil rights lawyer represented Plaintiff, who sued Defendant on a wrongful termination theory.


This case has come repeatedly before this court. It began after Gan was dismissed from his position with the Missouri Department of Social Services, Division of Finance and Administrative Services, in February of 2013. Schrock v. Gan, 494 S.W.3d 631, 633 (Mo. App. W.D. 2016) (Gan I).

Gan, a merit system employee, appealed his dismissal to the [Administrative Hearing Commission (AHC)], and the AHC initially determined that Gan's dismissal was not for the good of the service and ordered that he be reinstated. Id. The Department sought review in the circuit court, and the circuit court reversed the AHC's decision, finding that the AHC failed to use a proper analysis, and the court remanded the matter back to the AHC to reconsider under the proper analysis. Id. Gan appealed the circuit court's decision to this court, and we dismissed the appeal for lack of a final judgment and remanded the matter to the AHC for final determination. Id. at 637.

In March 2017, the AHC adopted its previous findings of fact, found additional facts, and concluded that Gan's dismissal was not for the good of the service and reinstated him to his position as Research Analyst III. Schrock v. Gan, 563 S.W.3d 127, 129 (Mo. App. W.D. 2018) (Gan II). The Department again sought review in the circuit court, and the circuit court again reversed the AHC's decision, finding that the AHC exceeded its authority and misapplied the law and that its determination was not supported by competent and substantial evidence upon the whole record. Id. Gan again appealed to this court, and we held that there was no error in the AHC's determination that the Department failed to show that Gan's dismissal was for the good of the service. Id. at 136-37. Therefore, we reversed the decision of the circuit court, affirmed the decision of the AHC reinstating Gan to his former position, and remanded the matter to the AHC for determination of attorney's fees and costs. Id. at 137.

On February 14, 2019, the AHC reopened the matter to determine Gan's date of reinstatement and the amount of back pay to which he was entitled. The AHC held a hearing on July 24, 2019, wherein it received documentary evidence and testimony from Penny Schrock, the former Appointing Authority for the Department; Dawn Plybon, the current Appointing Authority for the Department; James Brinkmann, a vocational rehabilitation specialist; and Gan. The parties agreed that Gan's dismissal date was February 1, 2013, and that he was reemployed as a Research Analyst III with the Department on January 14, 2019. They also agreed that the total wages Gan would have received for the nearly six years he was unemployed was $239,399.19. The Department argued, however, that Gan was not entitled to the full amount as a result of his failure to mitigate his damages by working during the period between dismissal and reemployment. Gan argued that he was entitled to not only the full amount of lost wages but also additional compensation for (1) the difference in medical insurance premiums paid and those he would have paid under the State's medical plan (MCHCP), (2) the loss in value of social security benefits, (3) the value of all lost annual leave, and (4) the value of his lost time in the Missouri State Employees Retirement System (MOSERS).

Gan v. Schrock, 640 S.W.3d 451, 454-55 (Mo. App. W.D. 2022) (Gan III).

In Gan III, this court affirmed the AHC's decision, holding that "The AHC did not err in entering its order determining Gan's reinstatement date of February 1, 2013, nor in its determination of Gan's back-pay award." Id. at 462.

As part of his original claim, Gan filed an application for attorney's fees on June 18, 2014. Since then, he has periodically filed updated affidavits from counsel and receipts, identifying additional fees and expenses incurred. The AHC denied Gan's application on February 25, 2020, "due to lack of evidence"; specifically, the AHC indicated that Gan "did not establish that he met the definition of a 'party' under § 536.085(2)(a)" insofar as the record contained insufficient information "to determine Gan's net worth at any relevant time."[2] Gan sought judicial review of the AHC's decision, and the circuit court upheld the decision. Gan appeals.

Outcome: Dismissed.

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Defendant's Experts:

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