Three years ago, the Missouri Supreme Court, in Farrow v. St. Francis Med. Ctr., 407 S.W.3d 579 (Mo. banc 2013), handed down a decision concerning when and how an employer had to challenge an employee’s alleged untimely filing of a complaint under the Missouri Human Rights Act. (See our 2013 post on Farrow here.) Seemingly, the message of that case was that if the MHRA did not specifically rule on the timeliness of the administrative complaint, it was incumbent upon the employer to race to the courthouse, and seek review of the agency’s action, under Mo.Rev. Stat. 213.075. Ever since, that decision has created consternation and confusion for practitioners, who hoped that this issue might be clarified in a Court of Appeals, Western District case titled Tivol Plaza v. Mo. Comm’n on Human Rights.
Alas, it was not to be. Instead of tackling the issue of when and how a defendant in a discrimination case must challenge the timeliness of a charging party’s claim, the Court of Appeals, sitting en banc, reviewed procedural issues that arose in the circuit court and decided it did not have jurisdiction to hear the appeal.
In Tivol, a former employee brought a sex and age discrimination claim against Tivol Plaza in the Missouri Commission of Human Rights (“Commission”). Pursuant to the Missouri Human Rights Act (“MHRA”), a plaintiff has 180 days to bring its claim of the alleged act of discrimination to the Commission. After the Commission receives a complaint, it has 180 days to investigate the merits and issue a right to sue letter allowing the plaintiff to pursue a civil action in circuit court. Upon expiration of the 180 days, and upon request by the plaintiff, the Commission must issue a right-to-sue letter even if the Commission has not completed its investigation.
The defendant, Tivol Plaza, argued that the plaintiff’s MHRA claim was not timely and asked the Commission to first dismiss all untimely aspects of the complaint prior to issuing the right-to-sue letter or alternatively to make factual findings for the circuit court’s review in deciding whether the right-to-sue letter was appropriately issued. Instead the Commission issued the right-to-sue letter indicating that they had not yet completed their administrative review and made no determination as to jurisdiction. Tivol Plaza then filed a petition for preliminary and permanent writ of mandamus in the Circuit Court of Cole County. The circuit court issued a summons rather than a preliminary order in mandamus and later dismissed Tivol Plaza’s petition.
The majority in Tivol held that the court did not have the authority to hear the appeal because the circuit court’s failure to issue a preliminary order in mandamus, pursuant to Missouri Rules of Civil Procedure Rule 94, prior to dismissing the case and instead issuing a summons, meant the petition was not determined on the merits and thus not appealable. Thus, the petitioner’s proper course of action would have been to file the writ in a higher court.
The majority relied on the Court’s 2013 decision in U.S. Dept. of Veterans’ Affairs v. Boresi, a case with a similar procedural history, where the Supreme Court exercised its discretion to consider an appeal even though the circuit court issued a summons instead of a preliminary order. The court noted that since Boresi, both the Eastern and Western Missouri Court of Appeals have decided the issue of whether the court has the authority to entertain an appeal in cases where the circuit court issued a summons instead of a preliminary order and both courts have dismissed the appeal.
Two dissenting opinions, by Chief Judge Alok Ahuja and by Judge Thomas H, Newton, argue that the appellate court should have heard the appeal. Judge Ahuja disagreed that the petition was not decided on the merits and suggested that Farrow had been wrongly decided and created procedural inefficiencies but states that the court is still “bound by the Missouri Constitution to follow Farrow unless and until it is modified or overruled by the Supreme Court.” Newton said that the dicta in Farrow is misdirecting andthat the case should be remanding to allow an evidentiary hearing in the circuit court.
As a result, there is still little guidance on when a defendant must challenge the timeliness of a claim made to the Missouri Commission of Human Rights and only seems to muddy the water surrounding procedural issues relating to petitions for writ of mandamus and when appeals from such petitions are warranted. However, as it stands now, Rule 94 does not provide for the issuance of a summons after the filing of a petition for writ of mandamus and, if the circuit court issues summons, appeal from the judgment is subject to dismissal.