The Missouri Supreme Court recently issued an opinion that clarifies when it is appropriate to challenge the issuance of a Missouri Commission on Human Rights (“MCHR”) right-to-sue letter. See State ex rel. Tivol Plaza, Inc. v. MCHR et al, Case Nos. SC95758 and SC95759, 2017 Mo. LEXIS 348 (Mo. banc August 22, 2017). This is an important and long awaited decision because it eliminates some of the confusion caused by Farrow v. St. Francis Med. Ctr., 407 S.W.3d 579 (Mo. banc 2013). Dicta in Farrow led employers to believe that they were required to raise all available affirmative defenses at the administrative level and that they risked losing the ability to assert those defenses in subsequent litigation if they did not challenge the issuance of the MCHR’s right-to-sue letter by filing a writ of mandamus within 30 days of the right-to-sue letter’s issuance. But Tivol makes clear it is inappropriate to file a writ of mandamus challenging the issuance of an MCHR right-to-sue letter if the right-to-sue letter was issued after 180 days have passed since the filing of the charge.
The MHRA’S Charge Filing and Right-To-Sue Letter Process
Employees who believe they have been unlawfully discriminated against cannot immediately file a lawsuit under the Missouri Human Rights Act (“MHRA”). They must first obtain a right-to-sue letter from the MCHR. To obtain a right-to-sue letter from the MCHR, the prospective plaintiff must file a charge of discrimination with the MCHR within 180 days of the alleged discriminatory conduct. See Mo. Rev. Stat. § 213.075. Subject to principles of waiver, estoppel, and equitable tolling, an employee is barred from asserting claims under the MHRA based on conduct that occurred more than 180 days before the date he or she filed the charge of discrimination. See Tisch v. DST Systems, 368 S.W.3d 245, 252 (Mo. App. W.D. 2012).
Once the charge is filed, the MCHR notifies the named employer (i.e. respondent) and gives it the opportunity to respond to the allegations asserted in the charge. Ideally, the MCHR reviews the materials presented by the respondent and then issues a right-to-sue letter and a “probable cause determination.” A probable cause determination is a statement from the MCHR as to whether it believes the employee’s allegations have merit. But due to resource constraints and the large number of charges it receives each year, the MCHR is rarely able to make a definitive probable cause ruling. Instead, it usually issues a right-to-sue letter to the employee and closes the file without making a determination one way or the other once the charge has been on file for more than 180 days. See Mo. Rev. Stat. § 213.111.1.
An employee has 90 days from the date stated on the right-to-sue letter to file a lawsuit against their employer under the MHRA. See Mo. Rev. Stat. 213.111.1; see also Hammond v. Munn. Corr. Inst., 117 S.W.3d 130, 137 (Mo. App. W.D. 2003). If the employee fails to file suit within 90 days of the date stated on the right-to-sue letter then all MHRA claims stated in the lawsuit are time barred. But assuming the lawsuit is filed within 90 days of the date of the right-to-sue letter, it is up to the courts to conclusively resolve the affirmative defenses raised by the employer, including whether the underlying charge was timely filed.
The Confusion Caused by Farrow v. St. Francis Med. Ctr.
Prior to Farrow, it was common for employers to wait until the plaintiff-employee had filed suit under the MHRA to assert and litigate statute of limitations defenses. Typically, they would raise it via a motion to dismiss or a motion for summary judgment. But the following language in Farrow called that practice into question:
“Hence, the Commission was required to determine its own jurisdiction even if it did not make a decision on the merits of Farrow’s claim. . . . The Commission did not close or dismiss Farrow’s complaint for want of jurisdiction; rather it exercised its authority to issue the right to sue letter, thus implicitly finding Farrow’s claim timely. . . . Defendants allege they raised their challenge to the timeliness of Farrow’s complaint at the earliest opportunity in their motions to dismiss and motions for summary judgment after Farrow filed her state court action. Defendants further assert they did not have to appeal the Commission’s issuance of the right to sue letter because there is no precedent requiring a defendant to raise the issue with the agency or later in a motion to dismiss or motion for summary judgment. . . . Nothing in the regulation’s language limits what ‘position’ may be asserted by the respondent, and one such ‘position’ may include a challenge to the timeliness of the complaint. Defendants failed to offer any objection based on timeliness [while the charge was pending before the MCHR]. . . . Defendants could have sought relief, however, pursuant to section 213.085.2, [by filing a writ of mandamus within 30 days of the issuance of the right to sue letter].
See Farrow, 407 S.W.3d at 589.
In response, defendant-employers began filing writs of mandamus as a matter of course out of the fear that a failure to do so may prevent them from asserting important legal defenses in subsequent litigation. It also caused many defendant-employers to take the position that the MCHR was now required to conclusively determine whether it had jurisdiction over any given charge prior to issuing the plaintiff a right-to-sue letter.
The Missouri Supreme Court Clarifies Farrow In Tivol
In Tivol, the Missouri Supreme Court (1) rejects the claim that Farrow required the MCHR to determine its own jurisdiction prior to issuing a right-to-sue letter and (2) rejects the claim that employers must file a writ of mandamus to preserve their ability to assert timeliness defenses in subsequent litigation. Instead, the Court held that Farrow should be read narrowly and that mandamus filing is available only if the MCHR issues a right-to-sue letter before 180 days have passed. (The Court does not address if filing a mandamus action is required in this instance and states Farrow did not decide the issue because the employer had waived the timeliness defense by not raising it with the MCHR.)
It turns out that the charge of discrimination in Farrow had only been on file for 145 days at the time the MCHR issued a right-to-sue letter to Ms. Farrow. “It was in this narrow factual circumstance that Farrow held the MCHR still was able to ‘close or dismiss Farrow’s complaint for want of jurisdiction,’ but it instead ‘exercised its authority to issue the right to sue letter, thus implicitly finding Farrow’s claim timely.’” Tivol, 2017 Mo. LEXIS 348 at *17. “To the extent dicta in Farrow has been interpreted to permit the employer to raise the issue by filing a petition for writ of mandamus in circuit court after the MCHR has issued a right-to-sue letter following the 180-day period, it has been misinterpreted. These cases are governed by the provisions of section 213.111.1, which required the MCHR to cease all action on employees’ complaints and issue a right-to-sue letter once that letter was requested more than 180 days after the employees filed their complaints.” Id.at *19-20.
A practical timing problem arises when a charge is dual-filed with the MCHR (with a 180 day jurisdictional limit) and also with the EEOC (with a 300 day jurisdictional limit). If the EEOC takes the lead in investigating the matter, it is a best practice for the employer to address any timeliness issues or other affirmative defenses under both federal and state law and submit its position statement to both agencies. Otherwise, even after Tivol, the employer could be deemed to have waived any affirmative defenses not asserted to the MCHR.
- If an employer believes that a charge of discrimination was not timely filed or that it has any other affirmative defenses under federal or state law, then it should expressly assert those affirmative defenses in its position statement and submit the statement to both the EEOC and MCHR if the EEOC is the investigating agency. Failure to assert affirmative defenses under the MHRA to the MCHR may be deemed to waive the defenses.
- Employers should consider including catch-all language in their position statements to attempt to preserve their right to assert additional affirmative defenses in subsequent litigation.
- If the MCHR issues a right-to-sue letter more than 180 days after the charge of discrimination is filed then the employer is not required to challenge, and may not challenge, the issuance of the right-to-sue letter by filing a writ of mandamus. After Tivol, we fully expect the MCHR will rarely, if ever, issue a right-to-sue letter before 180 days have expired.