September 17, 2017
The Missouri Supreme Court recently issued an opinion clarifying the procedure for challenging the timeliness of discrimination and retaliation complaints. Specifically, the Court instructed that the Missouri Commission on Human Rights (“MCHR”), must issue a right-to-sue letter, upon request, after 180 days have passed from the filing of an administrative complaint. As a result, employers are not required to challenge charge timeliness through a separate mandamus order after the 180-day period, but may raise the issue as a defense during the ensuing lawsuit.
In Tivol Plaza, two employers argued that the MCHR improperly issued right-to-sue letters on untimely claims. Citing the Court’s 2013 decision in Farrow, the employers claimed the MCHR was required to determine whether it had jurisdiction over the claims, and dismiss any untimely claims, before granting the right-to-sue even if the 180-day statutorily-permitted processing period had elapsed. The Court disagreed.
Rather, the Court held the MCHR may only dismiss a complaint for want of jurisdiction when, as in Farrow, 180 days have not yet passed. However, if 180 days have elapsed since the complaint was filed and the employee requests a right-to-sue, the MCHR is expressly required to issue a right-to-sue letter and terminate all related proceedings. Relying on a narrow construction of Section 213.111 of the Missouri Human Rights Act, the Court determined that, under such circumstances, the MCHR is deprived of its authority to process claims and cannot “make any findings of fact related to the complaints implicitly or otherwise, including whether they had been timely filed.”
The Court acknowledged that a pervasive misinterpretation of Farrow had led to widespread confusion and the filing of more than 100 petitions for writs of mandamus in circuit courts across the state. To remedy this, the Court specified that, after 180 days, claims are governed solely by Section 213.111, which strips the MCHR of its jurisdiction. Furthermore, since the Court cannot compel the MCHR to act beyond its jurisdiction, after 180-days, mandamus actions seeking to force a timeliness determination are both improper and unnecessary.
Following this decision, the MCHR will be required to cease all action on discrimination and retaliation complaints and issue right-to-sue letters, on request, upon expiration of the 180-day period. Post-Tivol, a grant of the “right-to-sue” no longer inherently signifies timeliness. Therefore, although plaintiffs may proceed on untimely claims in Missouri circuit courts, defendants are now free to challenge those claims without a grant of mandamus.
The cases are State ex rel. Tivol Plaza, Inc. v. Mo. Comm’n on Human Rights, 527 S.W.3d 837 (Mo. banc 2017) and Farrow v. St. Francis Med. Ctr., 407 S.W.3d 579 (Mo. banc 2013).
Lauren Gamel joined Carmody MacDonald in 2016 and concentrates her practice in civil litigation.
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