State of Missouri, ex rel. D&D Distributors, LLC d/b/a Grey Eagle Distributors and Neil Komadoski v. Missouri Commission on Human Rights, Alisa Warren, PH.D., In her Official Capacity as Executive Director of the Missouri Commission on Human Rights and Jerry Holloway

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, ex rel., )
D&D DISTRIBUTORS, LLC, d/b/a )
GREY EAGLE DISTRIBUTORS )
and NEIL KOMADOSKI, )
Appellants, )
)
v. ) WD82003
)
MISSOURI COMMISSION ON ) FILED: July 23, 2019
HUMAN RIGHTS, ALISA )
WARREN, PH.D., IN HER )
OFFICIAL CAPACITY AS )
EXECUTIVE DIRECTOR OF THE )
MISSOURI COMMISSION ON )
HUMAN RIGHTS, and JERRY )
HOLLOWAY, )
Respondents. )
Appeal from the Circuit Court of Cole County
The Honorable Jon E. Beetem, Judge
Before Division One: Cynthia L. Martin, P.J., and
Victor C. Howard and Alok Ahuja, JJ.
Jerry Holloway filed a charge of discrimination with the Missouri Human
Rights Commission against his former employer D&D Distributors, LLP (doing
business as Grey Eagle Distributors), and against D&D’s Chief Operating Officer
Neil Komadoski (collectively, “Employer”). Holloway’s administrative complaint
alleged that Employer had engaged in acts of age- and race-based employment
discrimination in violation of the Missouri Human Rights Act, ch. 213, RSMo (the
“MHRA”). The Commission issued Holloway a right-to-sue letter. In response,
Employer filed a petition in the Circuit Court of Cole County, alleging that the
Commission had no authority to issue Holloway a right-to-sue letter because it
lacked jurisdiction over his discrimination claims. The circuit court dismissed
Employer’s petition with prejudice.
Employer appeals. It argues that, under amendments to the MHRA which
became effective in August 2017, the Commission was required to determine its
jurisdiction over Holloway’s discrimination claims before issuing him a right-to-sue
letter. Employer also argues that the Commission lacked jurisdiction over
Holloway’s claims because he filed those claims too late, and because some of his
claims were preempted by federal labor laws. We conclude that the 2017 MHRA
amendments do not apply here, because the Commission issued Holloway a right-to-
sue letter, and terminated its administrative proceeding, before the 2017
amendments became effective. Under the law in effect prior to the 2017
amendments, as interpreted in State ex rel. Tivol Plaza, Inc. v. Missouri
Commission on Human Rights, 527 S.W.3d 837 (Mo. 2017), the Commission was
required to issue Holloway a right-to-sue letter whether it had made a jurisdictional
determination or not, once Holloway requested a letter more than 180 days after the
filing of his administrative complaint. Because the Commission acted lawfully in
issuing the right-to-sue letter, we affirm the circuit court’s dismissal of Employer’s
petition.
Factual Background
Holloway started working for Employer in July 1982 as a truck driver. While
working as a truck driver, Holloway was a member of a collective bargaining unit
represented by the International Brotherhood of Teamsters. In September 2007,
Holloway was promoted to a position in the marketing department. While working
in the marketing department, Holloway was not a member of the union.
2
In August 2015, Holloway was informed that his marketing position was
being eliminated. Employer told Holloway that he could apply for another job
within the company. Holloway applied for other jobs with Employer; he also
requested that he be permitted to exercise his union seniority rights and return to
his previous position as a truck driver. Holloway was advised that no other
position with the Employer was available. Employer also informed him that he had
forfeited his seniority rights under the collective bargaining agreement when he
resigned as a truck driver to take a position outside the bargaining unit. Because
Holloway was not selected for another position with Employer, and was not
permitted to return to his previous job, his employment terminated in August 2015.
On February 12, 2016, Holloway filed a charge of discrimination against
Employer with the Missouri Human Rights Commission. In his charge, Holloway
claimed that his race and age were contributing factors in Employer’s refusal to
allow him to return to his previous job as a truck driver, and in Employer’s decision
to terminate his employment.
Employer submitted a response to Holloway’s charge. Among other things,
Employer alleged that Holloway’s claims of discrimination relating to the
termination of his employment were time-barred, because Holloway was informed
that his employment would be terminated on August 6, 2015, but did not file his
administrative charge until 190 days later. Employer also argued that Holloway’s
claim of discrimination relating to its refusal to permit him to return to a job as a
truck driver was preempted by federal labor law, because that claim would require
the Commission to interpret the terms of Employer’s collective bargaining
agreement with the Teamsters union. Because of these purported “jurisdictional
deficiencies,” Employer alleged that the Commission was barred from issuing
Holloway a right-to-sue letter.
3
In March 2017 – more than a year after the filing of his administrative
complaint – Holloway requested that the Commission issue him a right-to-sue
letter. The Commission acceded to Holloway’s request and issued him a right-to-
sue letter on March 29, 2017. The letter stated in part:
The Missouri Commission on Human Rights (MCHR) is
terminating its proceedings and issuing this notice of your right to sue
under the Missouri Human Rights Act because you have requested a
notice of your right to sue.
This letter indicates your right to bring a civil action within 90
days of this notice against the respondent(s) named in the complaint.
. . . Upon issuance of this notice, the MCHR is terminating all
proceedings relating to the complaint. . . .
. . . This notice of right to sue is being issued as required by
Section 213.111.1, RSMo, because it has been requested in writing 180
days after filing of the complaint. . . . Please note that
administrative processing of this complaint, including
determinations of jurisdiction, has not been completed.
On April 28, 2017, Employer filed a petition for writ of mandamus, judicial
review, and declaratory judgment in the Circuit Court of Cole County, naming the
Commission, its Executive Director in her official capacity, and Holloway as
respondents. Employer argued that the Commission and Director had erred in
issuing Holloway a right-to-sue letter because the Commission lacked jurisdiction
over Holloway’s claims because the claims were untimely, and were preempted by
federal law. The circuit court issued a preliminary order in mandamus requiring
the respondents to answer Employer’s petition. After briefing and oral argument,
the circuit court issued its judgment quashing the preliminary writ and dismissing
the petition with prejudice. The court concluded that, because the Commission did
not render a decision within 180 days of the filing of Holloway’s administrative
complaint, and because he had requested a right-to-sue letter, the Commission was
required by statute to issue the letter.
Employer appeals.
4
While this proceeding was pending in the Circuit Court of Cole County,
Holloway filed a race and age discrimination lawsuit against Employer in the
Circuit Court of St. Louis County on June 26, 2017. Holloway v. D&D Distrib.,
L.L.L.P. et al., No. 17SL-CC02285. That action remains pending. In its First
Amended Answer to Holloway’s petition in the discrimination case, Employer
alleged as affirmative defenses that the Commission lacked jurisdiction to issue
Holloway a right-to-sue letter because his administrative complaint was untimely,
and that any claim concerning his request to return to a truck driver position was
preempted by federal labor laws. These are precisely the same jurisdictional
arguments which Employer seeks to raise in this proceeding.
Standard of Review
“An appeal will lie from the denial of a writ petition when a
lower court has issued a preliminary order in mandamus but then
denies a permanent writ.” “An appellate court reviews the denial of a
petition for a writ of mandamus for an abuse of discretion. An abuse of
discretion in denying a writ occurs when the circuit court misapplies
the applicable statutes.” But we review questions of law de novo.
Thus, we review de novo the legal question of whether the court may
direct the [Commission] to determine its authority or jurisdiction to
process a complaint before issuing a right-to-sue letter when the 180-
day window following the complaint has passed and the complainant
requests a right-to-sue letter.
Likewise, “[w]e review the dismissal for failure to state a claim
upon which relief can be granted de novo.” In doing so, we review the
petition “in an almost academic manner, to determine if the facts
alleged meet the elements of a recognized cause of action.” “In order to
avoid dismissal, the petition must invoke substantive principles of law
entitling plaintiff to relief and . . . ultimate facts informing the
defendant of that which plaintiff will attempt to establish at trial.”
Bi-State Dev. Agency of Mo.-Ill. Metro. Dist. v. Warren, No. WD81922, 2019 WL
2178590, at *3–4 (Mo. App. W.D. May 21, 2019) (citations omitted).
5
Discussion
Employer raises two Points on appeal, both of which argue that the circuit
court erred in dismissing its petition because Employer stated claims for
mandamus, judicial review, and a declaratory judgment. We address Employer’s
two Points together.
The MHRA authorizes the Commission “[t]o receive, investigate, initiate, and
pass upon complaints alleging discrimination in employment.” § 213.030.1(7).1 The
Act authorizes “[a]ny person claiming to be aggrieved by an unlawful discriminatory
practice” to “make, sign and file with the commission a verified complaint in
writing, within one hundred eighty days of the alleged act of discrimination.”
§ 213.075.1. The statute provides that, after receiving the complaint, the
Commission shall “promptly investigate the complaint” to determine whether
“probable cause exists for crediting the allegations of the complaint.” § 213.075.3.
“[I]f the director determines after the investigation that probable cause exists for
crediting the allegations of the complaint, the executive director shall immediately
endeavor to eliminate the unlawful discriminatory practice complained of by
conference, conciliation and persuasion . . . .” Id.
The MHRA permits a complaining party to terminate an administrative
proceeding if the Commission fails to complete its processing of a discrimination
charge in a timely fashion; in that event, the complainant may then file a civil
action concerning the discriminatory practice. Section 213.111.1 provides in
relevant part:
If, after one hundred eighty days from the filing of a complaint
alleging an unlawful discriminatory practice [in employment] . . ., the
commission has not completed its administrative processing and the
1 Unless otherwise indicated, statutory citations refer to the 2016 edition of the
Revised Statutes of Missouri, as updated through the 2018 Cumulative Supplement. With
the exception of § 213.075.1, none of the statutory language quoted in this opinion was
altered by the 2017 amendments to the MHRA.
6
person aggrieved so requests in writing, the commission shall issue to
the person claiming to be aggrieved a letter indicating his or her right
to bring a civil action within ninety days of such notice against the
respondent named in the complaint. . . . Upon issuance of this notice,
the commission shall terminate all proceedings relating to the
complaint. . . . Any action brought in court under this section shall be
filed within ninety days from the date of the commission's notification
letter to the individual but no later than two years after the alleged
cause occurred or its reasonable discovery by the alleged injured party.
In State ex rel. Tivol Plaza, Inc. v. Missouri Commission on Human Rights,
527 S.W.3d 837 (Mo. 2017), the Missouri Supreme Court addressed – and rejected –
arguments identical to those made by Employer in this case. In Tivol, two
individuals filed administrative complaints with the Commission, alleging unlawful
discrimination in employment. Like here: the Commission did not conclude its
investigations within 180 days; the employees requested right-to-sue letters; and
the Commission issued those letters, noting that it had not made any jurisdictional
determinations. Like Employer here, in Tivol the complainants’ employers filed
suit to challenge the Commission’s issuance of the right-to-sue letters. Like
Employer, the employers in Tivol argued that the Commission lacked jurisdiction to
issue the right-to-sue letters because the employees’ charges of discrimination were
untimely.
The Missouri Supreme Court held in Tivol that the Commission had acted
properly under the express and unambiguous language of § 213.111.1. The Court
reasoned that, once 180 days had passed after the filing of an administrative
complaint, and the complaining party requested a right-to-sue letter, the
Commission was required to cease its administrative processing, and issue the
right-to-sue letter – whether or not the Commission had yet made a jurisdictional
determination.
If 180 days have passed since the complaint was filed without
the MCHR completing its administrative processing, and the employee
requests a right-to-sue letter, section 213.111.1 expressly requires the
MCHR to issue the letter. At that point, section 213.111.1 is explicit:
7
“Upon issuance of this notice, the commission shall terminate all
proceedings relating to the complaint.”
That is what happened here. In both cases, more than 180 days
after they were filed, the employees’ complaints were still pending and
each requested a right-to-sue letter. In compliance with section
213.111.1, the MCHR immediately stopped processing the complaints
and issued right-to-sue letters although it had not yet determined
whether it had jurisdiction over some or all of the claims. The statute
is explicit that the MCHR had no authority to process these employees’
complaints further. § 213.111.1.
....
. . . [Because] 180 days had elapsed, . . . the MCHR was required
to issue the right-to-sue letters to the employees and terminate all
proceedings related to their complaints pursuant to section 213.111.1
even though it had not yet determined its jurisdiction. At that point,
the MCHR had no statutory authority to make any findings of fact
related to the complaints, implicitly or otherwise, including whether
they had been timely filed.
527 S.W.3d at 844, 845 (footnote omitted).
Tivol forecloses Employer’s claims: under Tivol, the Commission was not
required to determine its own jurisdiction before issuing the right-to-sue letter
Holloway requested, and lacked the authority to make such a determination once
180 days had passed and a request was made. As we explained in a more recent
decision:
Tivol Plaza makes clear that the MCHR has no obligation to make a
determination regarding its jurisdiction or authority before issuing a
right-to-sue letter, and if it has not made a determination before 180
days have passed and a right-to-sue letter is requested, the MCHR’s
decision to issue the right-to-sue letter is not only lawful but also
mandated by the MHRA and its implementing regulations.
Bi-State Dev. Agency, 2019 WL 2178590, at *7.
To avoid this result, Employer relies on language which was added to
§ 213.075.1 in amendments which became effective on August 28, 2017. See S.B. 43,
99th Gen. Assembly, 1st Sess. (2017). The language added to § 213.075.1 specifies
that the timely filing of an administrative charge of discrimination is “a
8
jurisdictional condition precedent to filing a civil action under this chapter.” The
newly added text continues:
The failure to timely file a complaint with the commission shall
deprive the commission of jurisdiction to investigate the complaint.
The commission shall make a determination as to its
jurisdiction with respect to all complaints. Notwithstanding any
other provision of this chapter to the contrary, if a complaint is not
filed with the commission within one hundred eighty days of the
alleged act of discrimination, the commission shall lack
jurisdiction to take any action on such a complaint other than
to dismiss the complaint for lack of jurisdiction. The failure to
timely file a complaint with the commission may be raised as a
complete defense by a respondent or defendant at any time, either
during the administrative proceedings before the commission, or in
subsequent litigation, regardless of whether the commission has issued
the person claiming to be aggrieved a letter indicating his or her right
to bring a civil action and regardless of whether the employer asserted
the defense before the commission.
§ 213.075.1 (emphasis added).
The amendments to § 213.075.1 on which Employer relies did not become
effective until August 28, 2017. All of the relevant events in this case occurred
before the new version of § 213.075.1 took effect. Thus, before August 28, 2017:
Holloway’s employment with Employer was terminated; Holloway filed his
administrative charge of discrimination with the Commission; more than 180 days
expired without the Commission making a jurisdictional determination or
concluding its processing of Holloway’s complaint; Holloway requested a right-to-
sue letter; the Commission issued Holloway a right-to-sue letter; Holloway filed his
discrimination lawsuit in the Circuit Court of St. Louis County; and Employer filed
its action in the Circuit Court of Cole County, challenging the issuance of the right-
to-sue letter.
The amended version of § 213.075.1 does not apply to the Commission’s
issuance of a right-to-sue letter to Holloway.
9
Amendments to statutes are presumed to operate prospectively,
but there are two exceptions: (1) if the legislature clearly expresses an
intent that the amendment be given retroactive application, either in
the express language of the act or by necessary implication; or (2) the
statute is merely procedural or remedial, rather than substantive.
Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d 787, 795 (Mo. App. W.D. 2018)
(citation omitted).2 Employer does not argue that the legislature expressed an
intent that the amendment to § 213.075.1 be given retroactive application. Instead,
it argues that the amendment was a procedural or remedial change, which should
be applied to this pending proceeding.3 The Commission disputes that
characterization; it relies on decisions addressing the retroactivity of other 2017
amendments to the MHRA to contend that the amendments to § 213.075.1 are
substantive, and can only apply prospectively.4
Employer would not prevail even if the 2017 amendments to § 213.075.1 were
labeled “procedural,” because it seeks to invalidate a right-to-sue letter which had
been issued, and the result of an administrative proceeding which had concluded,
before the statutory amendments ever became effective. Even if a new statute is
properly characterized as “procedural” or “remedial,” it will not be applied to
2 Even if the legislature has clearly expressed its intent that a new statute
apply retroactively, application of the statute must nevertheless also comply with the
prohibition of laws “retrospective in [their] operation” found in Article I, § 13 of the
Missouri Constitution. Mo. Real Est. Comm’n v. Rayford, 307 S.W.3d 686, 697–99 (Mo.
App. W.D. 2010).
3 The Missouri Supreme Court has explained that:
[p]rocedural law prescribes a method of enforcing rights or obtaining redress
for their invasion; substantive law creates, defines and regulates rights. The
distinction is that substantive law relates to the rights and duties giving rise
to the cause of action, while procedural law is the machinery used for
carrying on the suit.
Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 769 (Mo. 2007) (citations and
internal quotation marks omitted).
4 See Bram, 564 S.W.3d at 794–96 (holding that the 2017 modification of the
causation standard required to establish a discrimination claim was a substantive change
which applied prospectively only); Gilberg v. Associated Wholesale Grocers, Inc., No. 6:15-
CV-03365, 2018 WL 3614982, at *8–9 (W.D. Mo. July 27, 2018) (same).
10
invalidate actions which have previously been taken in a proceeding. Thus, in State
ex rel. Atmos Energy Corp. v. Public Service Commission, 103 S.W.3d 753 (Mo.
2003), the Missouri Supreme Court held that a new statute which changed the
procedures for notices of proposed rulemaking by administrative agencies would not
be applied in a case seeking judicial review of a final rule, where the agency’s notice
of proposed rulemaking had been issued before the new statute became effective.
The Court explained:
Because section 536.016 applies solely to an agency's proposal of
rules, and because the PSC proposed the rules prior to the statute's
effective date, the statute is relevant only if it has retrospective
application. We hold that it does not. As far back as 1909 this Court
held that, “If, before final decision, a new law as to procedure is
enacted and goes into effect, it must from that time govern and
regulate the proceedings. But the steps already taken, the status of
the case . . . and all things done under the late law will stand unless an
intention to the contrary is plainly manifested[.]” Clark v. Kansas
City, St. L. & C.R. Co., 219 Mo. 524, 118 S.W. 40, 43 (1909). An intent
to apply section 536.016 retrospectively cannot be gleaned from the
statute.
103 S.W.3d at 762 (other citations omitted).
Similarly, in Pierce v. State Department of Social Services, 969 S.W.2d 814
(Mo. App. W.D. 1998), this Court refused to apply a new procedural statute which
gave a circuit court discretion to reduce the Department of Social Services’ recovery
on a Medicaid lien in a personal-injury action, because the circuit court had entered
final judgment before the new statute became effective. In an opinion by Judge
Breckenridge, the Court explained:
Generally, procedural or remedial statutes are “applicable to all
pending cases – that is, those cases not yet reduced to a final,
unappealable judgment.” Procedural or remedial amendments do not
apply, however, to any part of a proceeding completed prior to the
effective date of the amendment. State v. Thomaston, 726 S.W.2d 448,
462 (Mo.App.1987). “[T]he steps already taken, the status of the case
as to the court in which it was commenced, the pleadings put in, and
all things done under the late law will stand unless an intention to the
contrary is plainly manifested; and pending cases are only affected by
11
general words as to future proceedings from the point reached when
the new law intervened.” Clark v. Kansas City, St. L. & C.R. Co., 219
Mo. 524, 118 S.W. 40, 43 (1909).
The amendment to § 208.215 became effective on August 28,
1996, after judgment had been entered and the Estate filed its notice of
appeal. Although the case was pending when the statute became
effective, application of § 208.215.9 would require this court to remand
the case for a redetermination of issues already resolved by the trial
court, and thus would invalidate what has already been done.
Therefore, even though § 208.215.9 is remedial, it cannot be applied in
this cause.
969 S.W.2d at 823 (other citations and footnote omitted).
At the time the Commission issued Holloway his right-to-sue letter, the
amended version of § 213.075.1 was not yet in effect. Under the statute in effect at
the time, as interpreted in Tivol, the Commission was required to terminate its
processing of Holloway’s claim, and issue him a right-to-sue letter, as soon as he
requested a letter more than 180 days after filing his administrative charge.
Indeed, under the law in effect in March 2017 when the right-to-sue letter was
issued, it would have been error for the Commission to make a jurisdictional
determination on Holloway’s claim, in response to his request for a right-to-sue
letter. As in Pierce, applying the new version of § 213.075.1 in this case “would
require this court to remand the case for a redetermination of issues already
resolved . . ., and thus would invalidate what has already been done.” 969 S.W.2d
at 823. We will not apply the new version of § 213.075.1 to a right-to-sue letter
which had already issued, and a Commission administrative proceeding which had
already concluded, before the amended statute took effect.
Employer argues that it is not seeking to apply the new version of § 213.075.1
to action of the Commission which took place before the new statute became
effective; instead, Employer maintains that it is seeking to apply the new statute in
the proceeding in the circuit court, which was active and pending at the time the
statutory amendment took effect. We are unpersuaded. Whether pleaded as a
12
claim for a writ of mandamus, for judicial review, or for declaratory relief, all of
Employer’s claims plainly seek review of the action of the Missouri Human Rights
Commission in issuing Holloway a right-to-sue letter. Thus, Employer’s petition
alleged that, because “[i]ssuance by MCHR of a notice of right to sue under these
circumstances was improper and unlawful,” “[a]ccordingly, [Employer] [filed its
petition in order to] appeal the administrative decision reflected in” the right-to-sue
letter. Employer prayed that the circuit court issue a writ of mandamus to require
the Commission “to withdraw and vacate their Right-to-Sue Letter,” reverse the
Commission’s issuance of the right-to-sue letter, and/or declare the letter “to be null,
void and of no effect, unlawful, invalid and unconstitutional.” Plainly, Employer
asked the circuit court “to examine and correct the agency decision, but not to form
a plenary judgment as by a court of general and original jurisdiction.” Deffenbaugh
Indus., Inc. v. Potts, 802 S.W.2d 520, 523 (Mo. App. W.D. 1990) (citations omitted).5
The fact that Employer seeks to apply the new version of § 213.075.1 to the
action of the Commission is also inherent in the nature of the new statute itself.
The new language added to § 213.075.1 imposes a new obligation on the
Commission (to make a jurisdictional determination with respect to every charge of
discrimination filed with it), and imposes a new prohibition on the Commission
(denying it the authority to take any action on a complaint over which it lacks
5 This principle is inherent in the concept of “judicial review”:
In Black's Law Dictionary, Fourth Edition, the word ‘review’ is defined: ‘To
reexamine judicially. A reconsideration; second review or examination;
revision; consideration for purposes of correction. Used especially of the
examination of a cause by an appellate court.’ And in Webster's Third New
International Dictionary, the word ‘review’ is defined as, ‘to re-examine
judicially.’ The phrase, ‘judicial review,’ as used in the sections under
consideration, is obviously intended to have a meaning similar to the word
‘appeal,’ and in Black's, supra, it is said that ‘an ‘appeal’ is a step in a judicial
proceeding, and in legal contemplation there can be no appeal where there
has been no decision by a judicial tribunal.’
State ex rel. State Bd. of Registration for Healing Arts v. Elliott, 387 S.W.2d 489, 492 (Mo.
1965).
13
jurisdiction, other than to dismiss the complaint). The new statutory language is
not directed to the circuit court, but to the Commission. And, as we have explained
above, all relevant action of the Commission occurred before the new statutory
language was even operative. While Employer’s review proceeding may have been
pending in the circuit court at the time the new statute became effective, the fact
remains that the relevant proceeding – the one before the Commission – had
concluded months earlier.
Conclusion
We affirm the judgment of the circuit court, which quashed the preliminary
writ of mandamus and dismissed Employer’s petition seeking review of the
Commission’s issuance of Holloway’s right-to-sue letter.6
_____________________________
Alok Ahuja, Judge
All concur.
6 Employer argues that, if this Court concludes that the current action was
properly dismissed, we should nevertheless declare that Employer may raise its
jurisdictional arguments as a defense in the discrimination lawsuit pending in the Circuit
Court of St. Louis County. We decline to issue what would amount to an advisory opinion,
directed at collateral proceedings pending in another court.
14